Decisions of the Montana Supreme Court and the Federal courts for the District of Montana and their
effect upon postsecondary education
by Michael August Devich
A thesis submitted in partial fulfillment of the requirements for the degree of Doctor of Education
Montana State University
© Copyright by Michael August Devich (1997)
Abstract:
This study of the decisions of the Montana Supreme Court and the Federal courts for the District of
Montana was performed to examine the effects of the courts’ decisions upon postsecondary education.
The study was delimited to three areas: (1) control and governance; (2) faculty and staff; and (3)
students. Two central research questions directed the focus of the study; (1) what was the impact of
judicial decisions upon the article providing for postsecondary education in the Montana Constitution
of 1889; and, (2) what was the impact of judicial decisions upon the article providing for postsecondary
education enumerated in the Montana Constitution of 1972? A literature review and a study of
postsecondary education law presented the general development of the law as it applied throughout the
United States and Montana. All of the cases involving postsecondary education which were presented
to the Montana Supreme Court and the federal courts for the District of Montana were presented in
chronological order in the three areas. The facts of the case, the court’s opinion, and the reasoning for
the court’s decision were presented for each case.
The cases showed that the Montana Supreme Court was guided by several principles in its
deliberations: (1) upholding the constitutionality of the state Constitution; (2) a reasonable presumption
in favor of a legislative action; (3) what constituted “due process” in actions involving faculty and
students; and (4) the doctrine of “academic abstention” under which the court would not interfere with
the discretion of school officials in matters which the law had conferred to their judgment unless there
was a clear abuse of this discretion, or arbitrary or unlawful action.
Under the Constitution of 1889 the Court ruled that control of the University System could be
exercised by the legislature. The Constitution of 1972 removed the . legislature from control and
created a constitutional Board of Regents to manage postsecondary education. The Montana Supreme
Court has upheld the power of the regents to manage and control the operations of postsecondary
education in Montana. DECISIONS OF THE MONTANA SUPREME COURT AND THE FEDERAL
COURTS FOR THE DISTRICT OF MONTANA AND THEIR
EFFECT UPON POSTSECONDARY EDUCATION
by
Michael August Devich
1-
A thesis submitted in partial fulfillment
of the requirements for the degree
of
Doctor of Education
MONTANA STATE UNIVERSITY
Bozeman, Montana
December 1997
.
J S lI
ii
APPROVAL
of a thesis submitted by
Michael August Devich
This thesis has been read by each member of the thesis committee and has been
found to be satisfactory regarding content, English usage, format, citations, bibliographic
style, and consistency, and is ready for submission to the College of Graduate Studies.
Date
■U,
irperson, Graduate
Committee
duate C
Q^irr
Approved for the Major Department
Approved for the College of Graduate Studies
STATEMENT OF PERMISSION TO USE
In presenting this thesis in partial fulfillment of the requirements for a doctoral
degree at Montana State University, I agree that the Library shall make it available to
borrowers under rules of the Library. I further agree that copying of this thesis is
allowable only for scholarly purposes, consistent with “fair use” as prescribed in the U.S.
Copyright Law. Requests for extensive copying or reproduction of this thesis should be
referred to University Microfilms International, 300 North Zeeb Road, Ann Arbor,
Michigan 48106, to whom I have granted “the exclusive right to. reproduce and distribute
my dissertation in and from microform along with the non-exclusive right to reproduce
and distribute my abstract in any format in whole or in part.”
Date
^ ^
"7
iv
TABLE OF CONTENTS
Page
ABSTRA CT............................................................................................................ :.............. vii
1. INTRODUCTION...............................................................................................................I
Purpose of the Study...................... ,................................................ :..........................I
Study Methods and Procedures...................
2
Data Collection................................................................................................. 2
Primary Sources................................................................................................3
Secondary Sources............................................................................................4
Review of the Literature.........................................................................
5
Postsecondary Education Law in the United S tates.....................................5
Postsecondary Education Law in M ontana..................................................13
Definition of T erm s..................................................................
13
Organization of the Study........................................................................................... 16
Significance of the Study..........................................
17
2. CONTROL AND GOVERNANCE.................................................................
20
Introduction................................................................................................................. 20
Statehood through World W ar I ...............;..............................................................22
Control of Funds.............................................................................................22
Donations and 1Bequests................................................................................ 27
Summ ary..........................................................
28
From World W ar I through World W ar II.......... .-...................................................29
Postsecondary Education and its Purpose................................................... 29
Authority of the Board...................................................................................32
Campus Expansion...................................................................
35
Regulations of the Board............................................................................... 40
Sum m aiy..........................................
42
End of World War II to the New Constitution........................................... 43
The Right to V ote.......................................................................................... 43
Legislative Authority..........................’.......................................................... 44
Status of the Trust Funds.............................................................................. 47
Summ ary...............................................
48
TABLE OF CONTENTS-Continued
The New Constitution.......................................................................................... . 49
Voting and College Trustees...................................... i............................... 49
50
Powers in General...........................................
'
Separate Boards..................................
52
Limits of Legislative Control..................................................................
54
. Privacy and the Public’s Right to K now ..................................................... 58
Duty of Care to M inor...................................................................................61
Immunity from Suit........................................................................................ 63
Arbitrarily and Capriciously........................................................................... 65
Summ ary......................................................................................................... 66
3. FACULTY AND STAFF.................................................................................................. 68
Introduction.........................................................................................
68
Montana Constitution of 1889...................................................................................69
Power of Legislature..............
69
Faculty and Tenure........................................................................................ 70
Summary......................................................................'................................. 72
Montana Constitution of 1972...................................................................................73
Retirement.......................................................................................................73
Community College Tenure...........................................................................78
. Wrongful Termination....................................................................................79
College and University Tenure..................... ;............................................. 82
Libel and Slander........................................................................................... 94
State Em ployees.......................................................................................
97
Immunity to Suit.............................................................................
103
Good Faith and Fan- D eahng.......................................................................106
Teaching and Tenure.................................................................................... 109
Grievances.........................................................
115
Constitutional Rights.................................................................................... 118
Summ ary....................................................................................................... 119
4. STU D EN TS...................................................................................................................... 121
Introduction................................................................................................................121
Montana Constitution of 1889...................................................................................122.
Arbitrary and Capricious.......................................................................................... 122
Summary.................................................................................................................... 127
Montana Constitution of 1972................................................................................ 127
Domicile.................
127
Readmission............................................................................................ . 130
vi
TABLE OF CONTENTS-Gontinued
Implied Contract...........................................................................................134
Residence Revisited.........................
136
Constitutional Law....................................................................................... 137
Award of D egree......................................................... :............................. 138
Summ ary....................................................................................................... 141
5. SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS
FOR FURTHER ST U D Y ............................................................................................... 142
Summary........................................................................................................
142
W hat Guided the Courts.............................................................................. 143
' . Aspects of Postsecondary Education Affected......................................... 145
W hat Groups Were Affected...................................................................... 149
Conclusions........................
152
Control and Governance under the Constitution of 1889.......................152
Reaction of the Constitutional Convention...............................................154
Control and Governance under the Constitution of 1972.......................155
Policies of the Board of R egents..............................................
156
Administration, Teaching and Tenure..................................................
156
Grievances and Due Process...................................................................... 158
The Courts and Students............................................................................. 158
Students and Due Process................... i.....................................................159
Recommendations for Further Study...................................................................... 159
Montana District Court Decisions.......................................................... 159
Effect of Federal and State Regulations.................................................... 161
REFERENCES.............................................................................1....................................... 162
vii
ABSTRACT
This study of the decisions of the Montana Supreme Court and the Federal courts
for the District of Montana was performed to examine the effects of the courts’ decisions
upon postsecondary education.
The study was delimited to three areas: (I) control and governance; (2) faculty
and staff; and (3) students. Two central research questions directed the focus of the
study: (I) what was the impact of judicial decisions upon the article providing for
postsecondary education in the Montana Constitution of 1889; and, (2) what was the
impact of judicial decisions upon the article providing for postsecondary education
enumerated in the Montana Constitution of 1972?
A literature review and a study of postsecondary education law presented the
general development of the law as it applied throughout the United States and Montana.
All of the cases involving postsecondary education which were presented to the Montana
Supreme Court and the federal courts for the District of Montana were presented in
chronological order in the three areas. The facts of the case, the court’s opinion, and the
reasoning for the court’s decision were presented for each case.
The cases showed that the Montana Supreme Court was guided by several
principles in its deliberations: (I) upholding the constitutionality of the state Constitution;
(2) a reasonable presumption in favor of a legislative action; (3) what constituted “due
process” in actions involving faculty and students; and (4) the doctrine of “academic
abstention” under which the court would not interfere with the discretion of school
officials in matters which the law had conferred to their judgment unless there was a clear
abuse of this discretion, or arbitrary or unlawful action.
Under the Constitution of 1889 the Court ruled that control of the University
System could be exercised by the legislature. The Constitution of 1972 removed the .
legislature from control and created a constitutional Board of Regents to manage
postsecondary education. The Montana Supreme Court has upheld the power of the
regents to manage and control the operations of postsecondary education in Montana.
I
CHAPTER I
INTRODUCTION
. Purpose of Study
The purpose of this study was to review, analyze, and delineate how the decisions
of the Montana Supreme Court and the Federal courts for the District of Montana have
affected postsecondary education in Montana. The study was delimited to three areas: (I)
control and governance; (2) faculty and staff; and (3) students. Two central research
questions directed the focus of this study: (I) What was the impact of judicial decisions
upon the article providing for postsecondary education set forth in the Montana
Constitution of 1889; and (2) What is the impact of judicial decisions upon the article .
providing for postsecondary education enumerated in the Montana Constitution of 1972?
These questions established the parameters of the central questions:
1. W hat guided the courts in the issuance of their opinions that determined how
the constitutional provisions concerning postsecondary education were to be
interpreted?
2. W hat aspects of postsecondary education did the decisions of the court affect?
3. W hat group, or groups, were affected by the decisions of the court?
2
Study Methods and Procedures
Data Collection
This study examined and reviewed data obtained from primary and secondary
sources. A primary source is one prepared by an individual who was a participant in or a
direct witness to the event being described while a secondary source is a document
prepared by an individual who was not a direct witness to the event, but who obtained his
or her description of the event from someone else (Cohen & Manion, 1985).
Data collection of the relevant court decisions involved a multi-step process.
Initially, the Montana Digest and the Pacific Digest, both containing a listing of all
decisions of the Montana Supreme Court reported in the Montana Reporter and the
Pacific Reporter, were researched to provide a chronicle of the court’s decisions which
were considered to involve postsecondary education. As part of this process the Federal
Digest, containing a listing of all of the decisions of the Federal courts reported in the
Federal Supplement for District Courts opinions and the Federal Reporter for the opinions
of the Courts of Appeals, was researched to produce all decisions of Federal courts which
involved postsecondary education in Montana. The cases thus produced were then
examined to determine if the postsecondary education issues reported in the cases were
the primary focus of the court’s opinion or were incidental in nature. If the educational
issues were directly related to the purposes of this study, determination of the import
attached to the decisions by the courts was the next step in the inquiry. This inquiry, using
Sheppards Montana Citations, was undertaken to ascertain if the decision of a court was
3
used in a later decision by the court itself or by any other court. Additionally, this inquiry
was conducted to determine if the opinion of a court had been modified, changed, or
overruled by later decisions. After all of the cases had been researched to determine if
they had been cited in any manner in a later case by any court, any case so cited was
researched to determine what effect, if any, the later decision had upon the original
opinion. The process culminated in the production of the court opinions which will be
presented in Chapter 2, “Control and Governance;” Chapter 3, “Faculty and Staff;” and
Chapter 4, “Students.”
Primary Sources
This study examined and reviewed data obtained from the following primary
sources: the Montana constitutions of 1889 and 1972 as they relate to postsecondary
education and the decisions of the Supreme Court of Montana, the Federal District Court
for the District of Montana, and the Federal Court of Appeals for the Ninth Circuit as they
relate to postsecondary education in Montana. This research contains the written opinions
of the courts for their decisions, including concurring and dissenting opinions. The
opinions include the statement of facts, precedents followed in deciding the outcome of
the case, the decision of the court and the reasoning of the court for reaching its opinion.
Records of the Montana Constitutional Convention of 1972 which consist of the
verbatim transcripts of the convention delegates during their discussions, debates, and
votes on the provisions of the Montana Constitution of 1972 as it relates to postsecondary
4
education were reviewed to determine the impact of court decisions and the Convention’s
response to the impact of these opinions.
The Policy and Procedures Manual of the Montana University System; Board of
Trustees Policy Manual and Collective Bargaining Agreement of Flathead Valiev
Community College; Collective Bargaining Agreement, and Bylaws of the Academic
Senate of Montana State University-Billings; Faculty Handbook of M ontana State
University-Bozeman; and the Personnel Policies. Collective Bargaining Agreement. 19971998 University Catalog. School of Law Bulletin, and Law Student Handbook of the
University of Montana were examined to determine the effect of the court decisions upon
the control and governance, faculty and staff, and students at these institutions.
Secondary Sources
The literature review for this research examined areas of studies previously
conducted in order to avoid duplication and present the results from research efforts which
had been previously conducted. Sources for the review included journal articles,
textbooks, legal treatises, and legislative and judicial documents that deal with
postsecondary education issues similar to those found in Montana, legal indexes and case
reports.
.5
Review of the Literature
Postsecondarv Education Law in the United States
During their formation in the twelfth and thirteenth centuries the concept of
autonomy for universities was established when it was stated “[t]hey appealed to king or
council against pope, to pope against king or bishop, and to kings and popes alike against
truculent town government” (Edwards & Nordin, 1979). Being a nation of laws the legal
rights and responsibilities of universities in America developed from three sources:
constitutions, statutes and court decisions (Alexander & Solomon, 1972).
Within the United States postsecondary education has developed not with
extensive central direction from the federal government, but on a state-by-state, basis.
Until the creation of the Depaitment of Education during the administration of President
Carter there was no national ministry controlling or directing the system of postsecondary
education (Hobbs 1978). Since each state’s political system is different, the impact of its
legal scheme varies widely (Young, 1981).
Initially, there were few legal requirements governing the educational
administrator’s functions, and those that existed were not an important factor in many
administrative decisions. Postsecondaiy education operated best by operating
autonomously and it thrived on the privacy afforded by such autonomy. It was considered
delicate and complex, so much so that an outsider would not understand its operations,
especially lawyers and judges.
6
The special environment of postsecondary education earned over to its personnel.
The faculties and administrators had knowledge and training beyond that of the general .
populace, and, as such, were responsible for guarding that knowledge, for future
generations. This special expertise, combined with their special mission-often at a
financial sacrifice-produced the perception that outside monitoring was unnecessary.
To a great extent the law reflected such attitudes. There was not extensive federal
and state regulation of postsecondary education. Legislatures and administrative agencies
imposed few legal obligations and provided few opportunities for their activities to be
legally challenged.
%
Historically, American courts viewed postsecondary education as a unique
enterprise and accorded it great autonomy. This independence included virtually all
employment, admission, teaching, and research activities. This doctrine of “academic
abstention” reflected the basis of academic autonomy and freedom established during the
formation of universities in medieval times and rested on the foundation of the special
expertise of the academician (Kaplin & Lee, 1995). As part of this doctrine .courts
generally deferred their judgment to that of the institution in matters of student
qualifications, faculty qualifications, student substantive rights, faculty substantive rights,
and discovery of information (Leas, 1991).
In matters concerning students, the courts using the in loco parentis doctrine,
permitted the institutions to exert almost untrammeled authority over students’ lives.
7
While predominately a phenomenon of elementary and secondary education, in loco
parentis had a strong legal basis in postsecondary education. The leading postsecondary
education case adopting this theory was a 1928 Kentucky case which said: "[Cjollege
authorities stand in loco parentis concerning the physical and moral welfare and mental
training of the pupils, and . . . may make any regulation for . . . betterment of their pupils
that a parent could for the same purpose” CGott v. Berea College. 156 Ky. 376,161 S.W.
204 (1913)). This theory placed the school in the place of the parent and afforded school
control over students commensurate with that of the parent in all matters pertaining to
functions of the school.
Courts began to intervene in traditional university internal discretionary matters
after the Second World War, specifically in the area of the First Amendment. It was not
until after the Second World War that anyone invoked court action to bring academic
freedom under its protection. It was also during this period that First Amendment
freedoms were extended to students as well as to faculty (Brubacher, 1971).
Beginning in the 1960’s courts substituted a constitutional standard for the
relationship between the university and the student for the previous standard of in loco
parentis (Millington, 1979). The key case in forging new student status was Dixon v.
Alabama State Board of Education, 294 F.2d 150 (5th Cir.) (1961). The court in this case
rejected the notion that education in state schools is a “privilege” to be dispensed on
whatever conditions the state in its sole discretion deems advisable; it also implicitly
8
rejected the in loco parentis concept. The court held that the student had a right to notice
and a hearing in university disciplinary proceedings when the charges could lead to
suspension or expulsion. The Dixon approach became a part of U. S. Supreme Court
jurisprudence in cases such as Tinker v. Des Moines School District. Healv v. James and
Goss v. Lopez.
The involvement of the federal government in postsecondary education law
continued to reflect social movements in postsecondary education and in the world outside
the campus: Viet Nam, equality, civil rights, consumerism, and issues on a college
education as “Necessary” (Chambers, 1964). Although the federal Constitution has no
.specific provision related to education it does have a number of provisions that directly
affect postsecondary education. Three amendments of the Constitution are of particular
concern: the First, Fourth, and the Fourteenth Amendments. The First Amendment
provides for freedom of religion, speech, press and assembly. The Fourth Amendment
provides protection against unreasonable searches and seizures. The Fourteenth
Amendment provides for equal protection under the law and requires due process of law.
Using the federal Constitution and these amendments, Congress has enacted statutory
provisions dealing with postsecondary education including aliens and nationality
(Immigration and Nationality); commerce and trade (Toxic Substances Control);
education (Teaching of Agricultural, Trade, Home Economics and Industrial Subjects;
Foreign and Exchange Students; Higher Education Resources and Student Assistance;
Basic Education for Adults; General Provisions Concerning Education; Education of
9
Individuals with Disabilities; Discrimination Based on Sex or Blindness; Vocational
Education; Career Education and Career Development); labor (Fair Labor Standards; Age
Discrimination in Employment; Vocational Rehabilitation and Other Rehabilitation
Services; Employee Retirement Income Security Program; Family and Medical Leave);
public contracts (Drug Free Workplace); public health and welfare (Elective Franchise
[The Voting Rights Act]; Civil Rights; Religious Freedom Restoration; Equal Opportunity
for .Individuals with Disabilities [American with Disabilities Act]); the Civil Rights Act of
1964; and Section 504 of The Rehabilitation Act of 1973 (Levin, 1997). The growth of
college athletic programs has resulted in courts reviewing the nature of athletic
scholarships and the relationship between universities and student athletes (Davis, 1991).
Prior to 1965, the courts had adjudicated only thirty-two landmark cases affecting
student development in postsecondary education (Barr, 1983). Since that time, issues
involving student discipline, student press, admission standards, liability of administration
in supervision of activities, and provision of health and counseling services have led to a
dramatic increase in litigation in postsecondary education.
In 1972-1974, the United States Supreme Court decided four highly significant .
cases in postsecondary education, more decisions on postsecondary education than it had
made in the previous two decades (Edwards & Nordin, 1979). Two of these decisions,
Healv v. James, 408 U.S. 169 (1972) and Vlandix v. Kline, 412 U.S. 441 (1973) dealt
with students’ rights of expression and association under the First Amendment in the
10
former case and with residency status and its attainment in the latter case. The other two
cases, Perry v. Sinderman. 408 U.S. 553 (1972) and Vlandis v. Kline. 412 U.S. 441
(1973) dealt with the rights of faculty members, both tenured and non-tenured, to
procedural due process under the Fourteenth Amendment.
The legal relationship between a college and its faculty has essentially three
characteristics: (a) individual rights or freedoms; (b) statutory requirements; and (c)
contractual conditions of employment (Alexander & Solomon, 1972).
The first of these, individual rights or freedoms, involves the wide range of
individual freedoms guaranteed by both federal and state constitutions. Intertwined with
these freedoms is the concept of academic freedom which presumably bestows upon a
teacher the additional freedom of intellectual thought, learning, and teaching, a freedom
which cannot be restricted or abrogated by institution or government. The idea of
academic freedom as we now view it was formulated in Germany during the nineteenth
century and is summed up by the words Lernfreiheit and Lehrfreiheit, the freedom to
learn and the freedom to teach (Harvard Law Review, 1968). Lehrfreiheit allowed the
professor to conduct research and convey his findings to his students without fear of
retribution.
In the United States academic freedom differs from its predecessor in Germany
because of the differences in individual rights. In Germany, Lehrfreiheit and Lernfreiheit
were extended to only faculty and students in the university, while in the United States the
11
individual freedoms granted by the Constitution of the United States guarantees all
persons Lehrfreiheit and Lernfreiheit regardless of .whether they are in universities or not.
Accordingly, the proposition that academic freedom should be considered a right has not
been generally accepted as a legal principle in the United States (Tisdel, 1968).
Loyalty oaths have involved many legal battles between teachers and the state.
While the justification for loyalty oaths seems quite simple, the Supreme Court of the
United States has in recent years gradually diminished most of the content of such oaths.
In 1971, in Connell v. Higgenbotham. 91 S.Ct. 1772, the Court held that a teacher could
not be summarily dismissed from public employment for failure to sign a loyalty oath.
And in Kevishian v. Board of Regents of University of State of New York, 385 U.S. 589
(1967), the Court had limited the state’s power to restrict a teacher’s freedom of
association and pronounced the relationship between academic freedom and constitutional
rights within the loyalty oath context.
Within the context of political activity teachers in colleges are frequently restrained
from participation in political activities. Relatively few cases have reached the courts;
however, those that have do give some insight as to the teacher’s constitutional right to
participate in politics.
In Pickering v. Board of Education. 391 U.S. 563 (1968), the Supreme Court held
that a teacher’s exercise of his right to speak on issues of pubic importance may not
furnish the basis for his dismissal from public employment.
12
In addition to the constitutional protections, teachers also possess statutory and
contractual protections against dismissal or other specified sanctions by a governing board
or administrator. Tenure is not peculiar to education; federal judges have tenure for life
and federal and state employees are generally protected by some type of tenure system
after serving designated probationary periods. Generally, tenured faculty can only be
dismissed by following certain statutory procedural steps and any deviation from the
procedure invalidates the dismissal. Additionally, a teacher can only be dismissed for
statutorily specified reasons including such causes as incompetency, insubordination, and
immorality.
Incompetence is the most frequently stated cause for dismissal and is probably the
most difficult to define. The Supreme Court has broadly defined the teacher’s standard of
fitness in Beilan v. Board of Public Education of Philadelphia. 357 U.S. 399 (1958).
Insubordination is more specific than incompetency and is generally considered to
constitute repeated refusal to abide by rules or regulations of the organization or to follow
reasonable directions of a superior. Immorality or immoral conduct is activity inconsistent
with moral rectitude.
Because of the unique development of education on a state by state basis court
decisions affecting governance have been limited with most cases involving the power and
authority of the governing boards. In several states the university governing board is
constitutionally made subject to legislative intervention in any or all of its affairs. Prior to
1972, Idaho and Montana were the only two states making the state Board of Education
13
the governing board of all postsecondary educational institutions (Elliott & Chambers,
1936).
Postsecondarv Education Law in Montana
Prior to 1972 the Montana Supreme Court had given little effect to Article XI,
Section 11 of the Montana Constitution of 1889 which vested the general control and
supervision of the state university in the Board of Education. Generally the court
decisions said that the Board of Education was a part of the executive branch of state
government (Waldoch, 1972).
Under the Constitution of 1972 the Board of Regents for the Montana University
System was transformed from a purely legislative creation to a constitutional department
(Schaefer, 1974).
Definition of Terms
I.
Board of Regents was established in the Montana Constitution of 1972 and
vested with the governance and control of the Montana University System. It has full
power, responsibility, and authority to supervise, coordinate, manage and control the
Montana University System and other public educational institutions assigned by law. The
board consists of seven members appointed by the governor, and the governor and
superintendent of public instruction are ex officio non-voting members of the board.
14
2. Constitutional Convention was the meetings of the delegates from January 17,
1972 through March 24, 1972, to draft a new state constitution to replace the Montana
Constitution of 1889.
3. Federal Circuit Court of Appeals for the Ninth Circuit encompasses the states
of Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, and
Hawaii and the territory of Guam, with twenty-eight judges holding court in San
Francisco, Los Angeles, Portland, and Seattle. Its jurisdiction consists of appeals from all
final decisions of the district courts within the circuit.
4. Federal District Court for the District of Montana consists of one judicial
district with three judges holding court at Billings, Butte, Glasgow, Great Falls, Havre,
Helena, Kalispell, Lewistown, Livingston, Miles City and Missoula. It exercises original
jurisdiction in all civil actions arising under the Constitution, laws or treaties of the United
States, any Act of Congress regulating commerce or trade, and civil rights.
5. Postsecondarv Education is divided into two systems. Higher Education;
defined by the Montana Legislature in 1995 and codified in the Montana Code Annotated
in §20-25-201, is entitled the Montana University System and divided into two elements.
One element is the University of Montana with facilities at Missoula, Butte, Dillon, and
Helena. The other element is Montana State University with facilities at Bozeman,
Billings, Havre, and Great Falls. Community Colleges, codified in the Montana Code
Annotated in Chapter 15 of Title 20, Education, is entitled Community College Districts
15
and deals with the organization of the community college system. The elements of this
system are located in Glendive, Miles City, and Kalispell.
6. Montana State University-Billings began operations in 1928 as the Eastern
Montana Normal School in Billings. In 1949 it became Eastern Montana College of
Education, in 1965 it's name was changed to Eastern Montana College, and in 1995 it
assumed its present title.
7. Montana State Universitv-Bozeman, commenced operations in Bozeman in
1893, as the Montana College of Agriculture and Mechanic Arts. In 1897 its name was
changed to the Montana State College of Agriculture and Mechanic Arts. In 1921 its
name was changed to Montana State College. In 1965 it was changed to Montana State
University, and in 1995 it assumed its present title.
8. University of Montana-Dillon began operations in 1907 as Montana State
Normal College. In 1948 its title was changed to Western Montana College of Education.
In 1965 it was changed to Western Montana College, and in 1995 it assumed its present
title.
9. The State Board of Education in the Montana Constitution of 1889 was given
the general control and supervision of the state University and the various other state
educational institutions. The board consisted of 11 members to include the governor,
state superintendent of public instruction, the attorney general, and eight members
appointed by the governor. The powers and duties of the board, were prescribed and
regulated by law.
16
10. The. Supreme Court of Montana consists of one chief justice and six
associate justices. It is the highest state court having appellate jurisdiction from lowerstate courts and may issue, hear, and determine writs and exercises original jurisdiction to
issue, hear, and determine writs of habeas corpus.
11. University of Montana-Missoula began operations in 1895 in Missoula as the
University of Montana. In 1913 the title was changed to State University of Montana; in
1935 it became Montana State University; in 1965 its name was changed to The
University of Montana; and in 1995 it assumed its present title.
Organization of the Study
Chapter I. Outlines the background and nature of the problem.
Chapter 2. The second chapter, “Control and Governance,” discusses and
analyzes the impact of the court’s opinions upon the administration of postsecondary
education under the Montana Constitution of 1889 including the constitutional and
statutory provisions for control. The chapter reviews funding and the receipt, control, and
disposition of property and funds. Also, under the Constitution of 1889, court
interpretation of the power of governing boards and officers was developed. The chapter
then discusses the changes in the governing of postsecondary education as a result of the
Constitutional Convention and looks at how the courts have interpreted the constitutional
provisions contained in the Montana Constitution of 1972. It then focuses attention on
17
the powers and liabilities enumerated for the University System and lastly, presents and
discusses the power of governing boards and officers as defined by the courts.
Chapter 3. “Faculty and Staff’ begins with a general discussion of the decisions
which the courts have rendered involving members of the professoriate in academic areas.
The majority of the opinions of the courts have been rendered in areas dealing with
employment, tenure, termination, and compensation. Accordingly, the balance of the
chapter is devoted to an analysis of these opinions and their effect upon the professoriate.
Chapter 4. This chapter investigates the impact of the judiciary upon students
involved in postsecondary education within the state. The majority of the opinions handed
down in cases in this area have been presented by the United States Supreme Court and
are outside the scope of this discussion; consequently, the cases presented for this study
are concerned with issues involving admission, suspension, contracts, domicile, and
conduct.
Significance of the Study
The significance of this study lies in the indisputable fact that law remains an
indispensable consideration in all activities within postsecondary education. Legal issues,
arising on and off campuses, continue to be heard not only on campus, but also in other
forums. Litigation has extended into every area of educational activity involving students,
faculty, administrators, and governing officials.
18
Students have sued for cancellation of classes, failure to graduate, admission to
graduate school, the right to participate in various campus activities, scholarship selection,
and testing (Bari:, 1983). Faculty members have sued because of class size increases,
salary structure, hiring, tenure, selection, sex discrimination, and sexual harassment
(Kaplin & Lee, 1995).
Increasingly, courts are entering into educational areas in which they traditionally
deferred. The passage of new laws and regulations and the generation of new issues have
resulted in expanded judicial interpretation and influenced the way in which faculty,
administrators, and governing boards do their jobs. With this perceived encroachment
into the academic domain has come criticism of the law’s role on the campuses. Much of
the criticism concerns the cost in money, time, and energy expended in dealing with legal
issues that divert postsecondary education from its primary mission of teaching and
scholarship.
While these criticisms continue we must not look only to the financial
expenditures but consider a number of other questions. Are the issues raised frivolous or
are they justified? Is the University system providing adequate mechanisms for dealing
with claims and complaints, thus avoiding the necessity of turning to outside forums? Are
the courts looking at the mission of postsecondary education when they render their opinions or devise remedies? And in those cases where the law has appeared to conflict
with the interests of the campus community, how has education responded?
The challenge of the law is to keep pace with education’s changing mission.
Concurrently, the challenge of postsecondary education is to understand and respond to
the changes in the law while focusing on its many purposes and constituencies..
20
CHAPTER 2
CONTROL AND GOVERNANCE
Introduction
Between its admission to the Union on November 8, 1889, and the approval and
passage by voters of a new constitution in 1972, postsecondary education in Montana was
provided for in Section 11, Article XI, Montana Constitution of 1889. This article
provided: “The general control and supervision of the state university and the various
other state educational institutions shall be vested in a state board of education, whose
powers and duties shall be prescribed and regulated by law . . . The cases presented
below will indicate that the Montana Supreme Court had given little effect to this article
during the eighty-four years it was used to control and supervise postsecondary education.
They will also show that while the court had protected postsecondary education from
encroachment upon the statutory authority which it had been granted by the legislature
there were no cases in which the legislature had been limited in its direction of
postsecondary education:
Following World War II the changing roles of local, state, and federal
governments, citizen activism, and the uncertainties of the mid-twentieth century began to
bring about an evaluation of our governmental framework and seemed to indicate,that
21
major constitutional changes would have to be made in the Montana Constitution. During
the latter part of the 1960’s, the Forty-first Legislative Assembly created a Constitution
Revision Commission to study methods of revising the Constitution. At the conclusion of
its study the body recommended that a constitutional convention be called.
Following passage of Referendum 67, calling for a constitutional convention, the
Forty-second Legislature established a Constitutional Convention Commission. The
Convention first met on January 17, 1972, and completed its deliberations on March 24,
1972. During the Convention five proposals were introduced by delegates concerning
postsecondary education and it control and supervision. The delegates rejected one
proposal, adopted the intent of two proposals and incorporated in part two of the
proposals into the educational provisions of the new constitution. Recognizing that the
educational system and its administration were fundamentally different in 1972 than 1889,
delegates drafted the educational provisions of the new constitution to provide for a board
of public education and a board of regents. As additional reasoning for establishing the
separate boards the delegates stated that postsecondary education was not simply another
state service and could not be considered as an ordinary state agency (Constitutional
Convention, Vol. I, 8). Accordingly, control and supervision of postsecondary education
in Article X, Section 9 (2) (a), of the Constitution of 1972 provides: “The government and
control of the Montana university system is vested in a board of regents of higher
education which shall have full power, responsibility, and authority to supervise,
coordinate, manage and control the Montana university system . . . . ”
22
The Constitution of 1972 resulted in the changing of the focus of the cases
presented to the Montana Supreme Court for determination. Now the court would be
called upon to decide what powers were conferred upon the Board of Regents and the
limitations upon these powers.
The cases affecting postsecondary education can be segmented into four time
frames: statehood through War I; frpm World W ar I through World W ar II; end of World
W ar H through 1972; and, the new constitution.
Statehood through W orldW ar I
Control of Funds
In October, 1895, less than six years after statehood, the Montana Supreme Court
was called upon to render its first decision on the authority of the Board of Education., In
State v. W right (1895) the treasurer of the agricultural college brought an action against
the state treasurer to compel him to turn over the proceeds derived from the sale of bonds
sold by the land commissioners under authority of the political code of 1895. Sections
1635 and 1636 of the code provided that immediately upon the receipt of the money, the
state treasurer was to turn over to the treasurer of the agricultural college the proceeds
which were to.be used to erect, furnish and equip buildings for the use and benefit of the
agricultural college in Bozeman under the general supervision of the state Board of
Education.
23
The court, in a one paragraph decision, stated the state treasurer was required to
turn over the money to the treasurer of the agricultural college immediately upon receipt.
W hile the court did not delve into the authority of the Board of Education its decision
gave notice of the broad authority given the board to carry out its constitutional duties.
In State v. Collins (1898) the court was called upon to render a decision involving
the payment of warrants issued by a building commission created by the legislature in 1895
providing for the erection, completion, furnishing and equipment of the buildings for the
University of Montana. The building commission issued a warrant to the contractor which
was presented to the state treasurer who refused to pay the warrant claiming that it had
not been approved by the state Board of Examiners.
The court discussed the statute providing for the sale of the bonds, creating the
“University Bond Fund,” and creating the building commission whose duties were to
contract, supervise, and pay the contractors for their work out of this fund. It went on to
state that the act of the legislature providing for the erection of the university buildings did
not contemplate that claims arising under the terms of the contracts for the building should
be subject to examination or approval by the state Board of Examiners. Their rationale for
this determination was that the University Bond Fund was a trust fund entirely different
from one arising from taxation, and not a state fund over which the Board of Examiners
would have control. The court also noted in its decision the legislature had provided that
the building commission should report from time to time to the state Board of Education
on the progress of the work and the expenditures therefore.
The authority of the Board of Education to control university funds came into
question again in 1901 in State v. Barret (1901). Peter Koch, Treasurer of the Executive
- Board of Montana State College of Agriculture and Mechanic Arts filed an action to force
the state treasurer to pay a warrant drawn upon him as the Treasurer of the Executive
Board. He alleged that the funds in the hands of the state treasurer had been derived from
rents of lands leased by the state land commission belonging to the grant of lands made by
the United States government in aid of the agricultural college. The state treasurer
answered that the legislature had not appropriated the money for the maintenance of the
agricultural college, and there was no law authorizing the payment to Koch of money
derived from the leasing of land donated to the state of Montana for the use and support
of the agricultural college.
The court entered into a lengthy discussion of the “Enabling Act” approved as an
Act of Congress on February 22,1889, providing for the admission of Montana into the
Union as a state. Under the provisions of this act there were granted to the state certain
lands for the use and benefit of state agricultural colleges. These lands were to be sold
and the proceeds invested to form a permanent endowment fund; and the interest was to
be devoted to the support of the colleges established pursuant to the declared purpose of
the grant. Article XI, Section 12, of the Montana Constitution required funds derived
from the sale of lands in the grants to be preserved for the purposes for which they were
dedicated, but directed that the interest be devoted to maintenance and perpetuation of the
institutions to which the grants belonged.
The court then discussed the powers and duties of the Board of Education as
created by the legislature. These included (I) the general control and supervision of the
state university and the various state educational institutions; (2) the adoption of rules and
regulations for its own government, necessary for the execution of the powers and duties
conferred upon them by law; (3) to prescribe rules and regulations for the government of
the various state educational institutions;. . . and ( 10) to receive any and all funds,
incomes and other property to which any of the said institutions may be entitled, and to
use and appropriate the same for the specific purpose of the grant or donation, and to have
general control of all receipts and disbursements of any of said institutions.
The authority of the Board of Education to control university funds was again
upheld when the court stated that the board was vested with the exclusive power to
receive, invest, manage and control the funds derived from the sale of the lands granted to
the state for the use and support of the agricultural college, and that the income therefrom
is subject to the orders of the board to meet the current expenses of the institution.
Quoting from its decision in State v. Collins (1898), above, the court held that the
legislature, in defining the powers and duties of the Board of Education, with a view of
following the spirit and intention of the act of congress creating the trust, intended that
this board should be endowed with the special and exclusive power of executing it free
from the limitations and restrictions of the constitution as to the expenditure of the
ordinary revenues of the state.
26
The Court was again called upon in State v. Rice (1906) to consider the
constitutionality of a law to enable the Normal School Land Grant to be utilized to
provide additional building and equipment for the Montana State Normal College in
Dillon. The act authorized the state Board of Land Commissioners to issue bonds and
apply the proceeds for the erection, furnishing, and equipment of an addition to the
Montana State Normal College building at Dillon and pledged as security for the payment
of the bonds the lands granted by section 17 of the Enabling Act which provided lands to
the state for the state normal school.
The court discussed Section 12 of Article XI of the Constitution providing that the
funds of the State University and of all other institutions of learning, from whatever
source, should remain inviolate; and, that only the interest of the funds, together with the
rents from leased lands or premises, should be devoted to the maintenance and
perpetuation of the respective institutions. It reasoned that if the funds must be invested
to draw interest, then the principal could not be used to pay off the principal or interest oh
the bonds which the legislature had authorized. Additionally, since the interest from the
Normal School Land Grant could only be devoted to the maintenance and perpetuation of
the normal school, the legislature’s act, in diverting the moneys received from the sale of
\
normal school lands, or the sale of timber therefrom, to pay the bonds, was void.
Completing the rationale for its decision the court stated that it seemed that early
sessions of the legislature understood that Congress meant for the state to build the
27
buildings for a state normal school out of its own funds and that the trust lands were to be
an endowment for the maintenance and perpetuation of such school for all time.
Donations and Bequests
The last case which the court was called upon to decide during this period was In
re B eck’s Estate (1912). Josiah Beck died in Silver Bow county in 1909, leaving an estate
valued at approximately $80,000. After bequests to his wife and others he left the residue
of his estate to the “Orphans Home” located at Twin Bridges, Montana. A controversy
arose as to the power of the state to receive the bequest which Beck had provided. In its
decision affirming that the law did not allow the state to be the beneficiary of the bequest
because under the law only natural persons and corporations formed for scientific, literary
or solely educational purposes could receive property through testamentary disposition
and the “Orphans Home” did not fall into any of these categories. The court then turned
its attention to an analysis of who could receive property under the statute and the powers
conferred upon them by statute.
The court first considered the state Board of Education, setting out the
composition of its members, then its control over the State University. It went on to state
that while not specifically authorized to accept gifts, devises and bequests for the benefit
of the university, the implication was that the board may do so and that any person
contributing not less than $15,000 could have the privilege of endowing a professorship,
or any department of it, subject to the power of the board to designate the name and
object of the gift.
28
The act creating the State School of Mines declared it to be a body corporate, with
power to sue and be sued, and to take and hold real and personal property by gift,
bequest, devise or purchase from the state, and dispose of the same when authorized by
law to do so. The court went on to state that all of the state educational institutions were
later declared to be under the exclusive control of the state Board of Education.
Accordingly, the control of the funds belonging to the state educational institutions, from
• whatever source derived or from whatever they may be derived, was vested in the board
with the power to authorize and regulate all expenditures by any of the institutions.
The power of the state Board of Education to accept gifts of land and money to
aid in the purchase of a site for the agricultural college and establishing the experimental
station was recognized as well as the law establishing the normal school which authorized
bequests to be made to the state board of education for the benefit and exclusive use of
the school. The court concluded that, but for these specific provisions conferring the
,
power to receive property upon the different agencies, they would be governed by the
general law and unable to receive testamentary dispositions.
Summary
While the results of these early decisions do not specifically mention the authority
of the Board of Education with regards to postsecondary education the language of the
court would seem to indicate that the constitutional provisions relating to their authority
was broad and very extensive. The board had the authority to receive and disburse the
proceeds of the sale of bonds; was exempted from having its warrants approved by the
29
Board of Examiners; was the exclusive manager of income from the lands granted to
establish an agricultural college; and, by implication, had the authority to accept gifts,
devises and bequests for the benefit of the state university.
In each of these cases it is also apparent that the court was influenced in its
determination of the scope of authority of the board because legislative enactments
granted such authority.
End of World W ar I through World W ar II
Postsecondarv Education and its Purpose
It was not until 1926 that the court was again called upon to render a decision
concerning postsecondary education. The case was State v. Erickson (1926) and arose
when a taxpayer brought an action to have the court declare that the proceeds from a state
tax levy should be used exclusively for the support, maintenance and improvement of the
four teaching units of the University of Montana and to enjoin the use of the funds for any
other purpose by the state Board of Examiners.
The initiative which proposed the levy stated that its purpose was for the support,
maintenance and improvement of the State University at Missoula, the State College of
Agriculture and Mechanic Arts at Bozeman, the Montana State School of Mines at Butte,
and the Montana State Normal College at Dillon, which comprised the University of
Montana, and that the Board of Examiners had declared that the Agricultural Experiment
30
Station and the Agricultural Extension Service were parts of the agricultural college and
entitled to share in the levy.
W hat was termed “The Greater University” was created by law and from July I,
1913, the State University at Missoula, the College of Agriculture and Mechanic Aits at
Bozeman, the Montana State School of Mines as Butte, and the Montana State Normal
College at Dillon, and such departments of said institutions as thereafter organized,
constituted the University of Montana. Prior to this time each of the these units, existed as
separate and distinct institutions created by law, and each had been placed under the
supervision and control of the Board of Education.
The inception of agricultural colleges was found in an act of congress approved
July 2, 1962. The Agricultural Extension Seiwice was created by an act of congress
approved May 8, 1914. The work of the extension service was to give instruction and
practical demonstrations in agriculture and home economics to persons not attending or
resident in agricultural colleges carried on by mutual agreement between the Secretaiy of
Agriculture and the state agricultural college.
The experiment stations were provided for by acts of congress approved March 2,
1887, and March 16, 1906. The scope of work of this “department,” disseminated to
persons not attending or resident in the colleges, consisted of research work and scientific
experiments for the purpose of discovering the cause of, and remedy for, diseases in plants
and animals. The supervision of the stations was vested in the United States Secretary of
Agriculture.
31-
In 1893, the legislature passed an act providing for the Agricultural College of the
State of Montana and an agricultural experimental station in connection therewith. The
first six sections of this act provided for the site, management, organization, and the
supervision and control by the Board of Education. The act, in Sections 7 and 8, then
provided for the establishment of the experiment station. By providing for the creation of
the two in separate parts of the act the court reasoned that the legislature indicated its
intention that the experiment station should not be a part of, or a department in, the
agricultural college. Additionally, it reasoned that since the Secretary of Agriculture had
control and direction of the extension service it was not a part of the agricultural college.
The court then ruled that the extension service and experiment station were not part of the
“Greater University” and could not share in the proceeds of the -levy.
In Mills v. Stewart (1926) the court stated that an appropriation of money to
encourage education by means of public schools and colleges is for a public purpose and
that whatever contributes to make that system of education effective is also a public
purpose.
The case arose when George Rietz was injured while a student at the university at
Missoula. He registered and was assigned a room on the second floor of the “South Hall”
dormitory. On this floor near his room were two doors about two feet apart, one of which
led into the bathroom and the other into the elevator shaft; neither door was locked and
neither one was marked or labeled. The hall was dimly lighted, and in attempting to enter
the bathroom he instead opened the door leading into the elevator shaft. He fell to the
32
bottom of the shaft and sustained serious, permanent injuries. To partially compensate
Reitz for his injuries the legislature passed a law providing that if he presented a claim to
the state Board of Examiners within three months of the passage of the act, he could
collect damages, not exceeding $7,500, as a claim against the state of Montana.
In upholding the act the court stated that in order to encourage education the state
had provided money to assist in defraying the traveling expenses of students attending any
of the units, of the university and provided free textbooks to children attending the public
schools, and both were considered to be a public purpose. It reasoned that compensating
a student who, while attending the university, was seriously injured through the negligence
of the state, contributed directly to encourage attendance at such institutions. The court
declared that whether an act of the legislature was wise or unwise was a matter for
legislative decisions and not one which was open to consideration by the court and that it
was not in the province of the court to run a race of opinion with the legislature upon
questions of policy or expediency.
Authority of the Board
State v Brannon (1929) was the first case in which the court, clarifying its earlier
decisions on the powers of the Board of Education, declared the board to be a part of the
executive department of state government and one of its agencies, and, as such, subject to
legislative control.
In 1927 the legislature passed a law which provided for the collection of fees from
gasoline dealers, required the Public Service Commission to enforce the law, and
33
designated the head or chairman of the Department of Chemistiy of the State College of
Agriculture and Mechanic Arts as the state chemist and directed him to analyze and test
gasoline samples for quality and strength. The act further provided that the chemist was
to receive no compensation for his services, nor charge any fee, for the tests. During the
month of August, 1929, the commission presented samples to the chemist which he
refused to analyze.
The court stated that the legislature could have created another bureau or
department to perform the analyses but it did not do so and, instead, it created as state
chemist the Head of the Department of Chemistiy at the state college. The Board of
Education argued that the university was established by the Montana Constitution, and
since the management of the university was vested in the board by the Montana
Constitution, the legislature was without power to impose a noneducational and
antagonistic function upon one of .the university units and also asserted that it was “within
the scope of its functions, coordinate and equal with the legislature.” After setting forth
Section 11 of Article XI of the Montana Constitution: “The general control and
supervision of the state university . . . shall be vested in a state board of education, whose
powers and duties shall be prescribed and regulated by law.” the court denied both
contentions stating that the powers of the government of the state were divided into three
distinct departments: the legislative, executive and judicial. Fmther it ruled that the Board
of Education was a part of the executive department, and that the legislature may describe
the extent of the powers and duties to be exercised by the board and could broaden the
34
functions of the university, or any of its units. It went on to state that a law may be
enacted by the people exercising the initiative or by the people acting through the
legislature and in either case the power to enact a law was illimitable. The legislature
could require research and experimental work to a greater degree than was being carried
on, and for the public benefit could require the discharge of functions in new fields, or in
other words, the state could extend, and add power to, its developmental arm.
Although the court was correct to reject the argument that the board was “equal
with the legislature” in its decision, it failed to consider whether the legislature, in
designating the Head of the Chemistry Department as state chemist, had infringed upon
. the authority of the Board of Education to control and supervise the state university.
The court’s analysis also presents the question of whether the legislature was
prescribing the powers and duties of the board, or controlling and supervising the
university. Arguably, the legislature’s power to prescribe the duties of the board did not
include the power to carry out these duties by assigning specific duties to a professor.
Another factor which the court failed to consider was that by placing so much
emphasis on the authority of the legislature to dictate the duties and responsibilities of the
board it could have had the effect of eliminating the clause granting the board “general
control and supervision” from the Montana constitution. If this clause was not present in
the Montana constitution, the legislature would have had the authority to create a state
university and the board to administer it. However, the constitutional provision creating a
state university and providing for its control acted as a restraint upon the authority of the
35
legislature to create a state university and a board to administer it without restraint. And,
under such a situation there would be no restraint upon the legislature in prescribing or
even eliminating the authority of the board which it had created.
Campus Expansion
Barbour v. State Board of Education (1932) was the first of a series of cases
arising out the “Great Depression” of the 1930’s. The court was called upon to decide the
authority of the board to erect buildings to be used for residence halls upon the campuses
at Missoula and Butte. The legislature enacted a law which included the borrowing of
money with the security for repayment to be the pledging of the net revenue from the
operation of the residence halls, together with the net revenue from residence halls already
erected and in use. The complaint alleged this was an unconstitutional delegation of
power by the legislature.
The court reasoned that the act only authorized the board to carry out the
expressed will of the legislature, even though the procedural directions and the things that
needed to be done were specified only in general terms and therefore it was not a
delegation of legislative power.
The court placed emphasis on the fact that the faith and credit of the state was not
involved in the issuance of the bonds and the taxpayers of the state would never be
burdened or called upon to undertake to repay the obligations which were to be created.
State v. State Board of Education (1934) (Veeder) was an action to stop the
Board of Education from erecting and maintaining a students’ union building at the
36
university in Missoula. In 1933, the legislature, during the Extraordinary Session of 193334, enacted a law to take advantage of the “National Recovery Act,” which permitted the
advance of federal funds for the construction of public works. Under the state law the
Board of Education was empowered to erect student union buildings on the various
campuses with all principal and interest payable solely from funds from the operation of
the buildings and from income derived from student fees.
The university had always exacted from the students matriculation, registration and
certain other fees, and, in 1929, the student body at Missoula voted to increase the student
fees by $1 a quarter for the purpose of creating a fund with which to erect a students’
union building. The fee had been collected for several years and was being held in a
special fund for that purpose.
The Board of Education completed a plan to erect a building at Missoula financed
by a loan of $240,000 from the federal government, for which the board would issue
bonds amortized over a thirty-year period, and a grant of $60,000 from the government.
To pay for the upkeep of the building, payment of the interest, and the creation of a
sinking fund for the retirement of the bonds at maturity, the board established a student
union building fee of $5.00 per student per year to be in effect as long as the bonds were
outstanding.
It was contended that the board had no authority to charge a student union fee, or,
if such authority existed, that it could not be done without the consent of the student
body. The authority granted the board by the legislature for the control and supervision of
37
the institutions included the right to receive from the United States and from state boards
or persons funds, income, and property to which the institutions were entitled and to have
general control and supervision over all receipts and disbursements of the institutions.
W hile the legislative grant contained no direct authorization to the board to impose fees of
any kind upon the student, it does contain the restriction that “tuition shall ever be free to
all students who shall have been residents of the state for one year.
The court reasoned that the power to manage and control the business and
finances of the institutions carried with it the implied power to do all things necessary and
proper in the exercise of the general powers, to include the exaction of fees, if the fees
were necessary to the conduct of the business of the institutions. Also, unless these fees
were for “tuition” they were no different than the fees already charged and required no
vote of the student body for their enactment. Accordingly, the provision respecting free
tuition did not bar the state board from collecting the fee as a condition precedent to entry
into the university.
As for the argument that the board could not bind its successors the court stated
that all governing boards exercised two distinct classes of powers: the one legislative and
governmental, the other proprietary, or in the nature of business managers for the public
they serve. In the exercise of the first class of powers, a board could not bind its
successors, but in the second it could enter into valid contracts extending far beyond the
term of office of the members. The members were acting as a board and not as individual
38
members, and the fact that the term of office of the individuals would expire before the
termination of their contract did not in any way affect the validity of the contract.
The court also ruled that the $1.00 fee “Student Union Building Fund” collected
each quarter and held in a “special fund” in the custody of the president and business
manager of the university was in the nature of. a gift, or grant, or donation to the
institution of which the board was the trustee and the board could use or appropriate this
fund for the purpose for which it was raised and no other. Since there was no difference
in the use of the money for the purpose of erecting a building and in using it to repay
money borrowed for the immediate construction of the building, the board had authority
to pledge this fund along with the future fees to be paid by the students to pay for the
bonds issued to construct the building.
State v. State Board of Education (1934) (Blume) raised the question of the
authority of the Board of Education to issue bonds for the erection and construction of
buildings for Eastern Montana State Normal School in Billings. These funds were to
provide for two buildings: one housing administration offices, classrooms, laboratories,
and the library; and the other housing the auditorium and gymnasium. The act, passed
during the Extraordinary Session of 1933-34, specifically provided that the state would
not be liable for payment of the bonds and that they were payable solely from the Eastern
Montana State Normal School fund.
The court noted that the site for the campus was purchased by citizens of Billings
and donated to the state and that no buildings had been erected during the seven years that
39
the school had been in existence. The court then ruled, using the reasoning set forth in
State v. State Board of Education (1934) (Veeder), State v. Barret (1901), and Barbour v.
State Board of Education (1932). that the law did not violate the provisions of the
constitution.
State v. State Board of Education (1936) (Wilson), presented the court with the
question of the authority of the Board of Education to act under a law passed by the
legislature during the Extraordinary Session of 1933-34, and utilize funds of the Federal
Emergency Administration of Public Works to construct a jour nalism building at the
university in Missoula. The action arose when a university student brought an action to
enjoin the board from pledging the income from the federal land grant to the state of
Montana as security for a loan. The court reasoned that while the legislative act did not
specifically say in so many words just what things were necessary for its purpose, the
broad language used justified the belief that the authority was given to the board to do the
lesser things required to do the major things. While the act did not say the board could
borrow money or issue bonds, these two things were necessary steps that had to be taken
before construction. It stated that everyone knew the purpose of the university was to
educate the youth of Montana and that in order to achieve this purpose, buildings,
laboratories, equipment, and teachers were necessary. And, quoting its previous decisions
in State v. State Board of Education (1934)(Veeder) and State v. State Board of
Education (1934) (Blume), the court again made reference to the fact that the state of
40
Montana would not be liable for the bonds, and that the board had complete and final
authority over the income in the funds established with the federal land grants.
The last case dealing with construction, State v. State Board of Education (1936)
(Dragstedt), again called into question the authority of the Board of Education to
construct and equip a chemistry-pharmacy building at the university in Missoula using a
loan and grant from the Federal Emergency Administration of Public Works under a law
passed by the legislature during the Extraordinaiy Session of 1933-34.
The court noted that the legislature did not provide by a specific act for the
erection of a chemistry-pharmacy building, as it did for the erection of the student union
building State v. State Board of Education ((1934) (Veeder) and the journalism building
State v. State Board of Education (1936) (Wilson) in Missoula, and the buildings at
Eastern Montana State Noimal School State v. State Board of Education (1934) (Bloom).
Quoting from its decision in State v. Brannon (1929) the court stated that the board is a
governmental agency and, therefore, the loan was within its powers. It upheld the
authority of the board to issue the bonds since their repayment did not involve an
obligation of the state of Montana.
Regulations of the Board
In State v. Avers (1939) the court was asked to rule on several issues involving the
reinstatement of Philip 0 . Keeney to his position as Librarian and Professor of Library
Economy at the university in Missoula. The issue with which we are concerned in this
chapter deals with the authority of the Board of Education to adopt rules. In particular,
41
the board had adopted regulations, which had been in force for approximately twenty-one
years, providing that reappointment of a professor after three years of service was deemed
a permanent appointment.
The court stated the regulations adopted by the board were within its authority
under Article XI, Section 11, Constitution of Montana and the provisions of the revised
codes of Montana. Additionally, the court ruled that the regulations of the Board of
Education, made within its jurisdiction, have the force of law, and become part of the
contracts that were made thereunder.
The case of State v. Ford (1944) again involved the regulations of the board, and
again, the status of a faculty member. Within the context of this chapter we are only
concerned with the authority of the board and its officers. Paul C. Phillips, Professor of
History and Political Science, delivered his letter of resignation from his position to the
president of the university in Missoula, on October 2,1937. On December 12,1937,
Phillips signed a withdrawal of his resignation. It was delivered to President Simmons on
December 12, one day prior to the meeting of the Board of Education. On December 13,
1937, the board accepted his resignation.
The court ruled that the relationship between the board and Phillips was that of
employer and employee and that he held his position under what was known as permanent
tenure. It also ruled that under a provision of the regulations of the board in force, the
president acted as a medium of communication between the board and the officers and
organization of the university and that it was his duty to convey the withdrawal to the
board before it acted on the resignation. Further, the court ruled that the president, under
the regulations of the board, could only make nominations and reports of appointments,
promotions, salaries, transfers, suspensions, dismissals and resignations of administrative
officers, members of the instructional and scientific staffs and other employees o f . . . the
university. Accordingly, as far as resignations were concerned the president must report
them to the board, and he had no authority to accept them.
Summary
The period from World War I through World War II was one of change in
postsecondary education. Based on its decisions during earlier years in cases involving the
authority of the Board of Education it would have been thought the court would have, at a
minimum, maintained the status quo of the authority of the board. Instead, the court
declared the authority of the board to be only that which was bestowed upon it by the
legislature, no more and no less. This period saw the court affirm that postsecondary
education was a public purpose of the state, define college and university, and provide for
the interpretation of the rules and regulations of the board as law. During the “Great
Depression” the court played an instrumental part in upholding the emergency powers
granted to the Board of Education by the legislature resulting in the expansion of existing
campuses and providing for a new campus for the Eastern Montana State Normal School
in Billings.
The cases show that while the court had held the Board of Education was merely
an agency of the government and not a separate entity it still gave effect to the authority
43
which it had been given by the legislature. While the court was limiting the. authority of
the board it seemed to have given it during the preceding years it was at the same time,
because of the national crisis brought about by economic conditions, allowing it to do all
that it could to ameliorate the effects of the economy.
End of World War II to the New Constitution
The Right to Vote.
In Thomas v. Board of Examiners (1949) the court was called upon to determine
■the validity of a referendum authorizing the Board of Examiners to issue bonds in order to
obtain money to be used for construction and equipping of necessary buildings and the
acquisition of grounds therefore at the six units comprising the University of Montana.
The issues presented to the court involved the ruling of the election judges that only
registered electors who were taxpayers upon property with the state and whose names
appeared upon the last completed assessment roll for state, county and school district
taxes could vote upon the referendum and by using, the wording “there shall be a
referendum on this act” that the entire act of the legislature was referred to the people in
violation of the state Constitution.
The court found that the provisions allowing only property owners whose names
were on the assessment rolls was required by the Constitution and that the section of the
act requiring the referendum to be submitted to the people and qualified electors must be
read in light of the Constitution. The only electors qualified under the Constitution to
44
vote upon the question were taxpayers whose names appeared on the last completed
assessment roll. As to the other question the court stated that the voters were only asked
to vote for or against the bond issue, and not for or against the act and, as such, having
the title of the act on the ballot was only for the purpose of explaining the bond issue.
Legislative Authority
The court, in Meens v. State Board of Education (1954), was called upon to
render its decision in an action by Richard Meens, a Professor of Mathematics at Eastern
M ontana College of Education in Billings, against the Board of Education to recover
damages for breach of contract. The question presented was whether the board of
education could be sued for a breach of the contract which it entered into with Meens.
The court discussed the control and supervision of the state university granted by
the Constitution and the pertinent statutes enacted by the legislature relative to the Board
of Education, including the authority to choose the faculty for each institution and to
select the faculty, teachers and employees thereof.
The court traced its decisions in other cases in which it had been called upon to
determine the power and authority of the board, including State v. State Board of
Education (1934) (Veeder), wherein it stated “All governing boards exercise two distinct
classes of powers; the one legislative and governmental, the other proprietary, or in the
nature of business managers for the public they serve. If the exercise of the first class of
powers, a board cannot bind its successors, but in the second it may enter into valid
contracts extending far beyond the term of office of the members.”
45
The couit ruled that the law would allow the plaintiff to bring his action against the
Board of Education to compel it to perform its clear, legal duty and that the board could
be sued since the relationship between the board and plaintiff was that of employer and
employee, that is, contractual in character.
Bipwn v. State Board of Education (1963) was the last case in which the court
discussed the authority and power of the Board of Education. The plaintiff was a speech
instructor at Eastern Montana College of Education in Billings employed from September
I, 1961, to June 30, 1962. She alleged that the board, acting by and through its
authorized agents and employees, employed her to teach under contract the summer
session, July and August of 1962. H. L. Steele, President of the college, testified that he
was authorized by the board to seek instructional staff. He also said that he delegated the
interviewing of applicants to heads of departments and that he, in turn, recommended to
the board who should be hired. He testified that the board does the hiring and that he
never told the heads of department they did not have authority to hire and that he had not
considered it necessary to do so. The question presented to the court was whether the
college officials had the power to enter into a contract with the plaintiff
The court looked at the express statute which the plaintiff asserted authorized the
board to delegate to the President and faculty the selection of teachers and other
’
employees at the college. It provided in part:
“Powers and duties, The state board of education shall have power and it shall be
its dut y : . . . . "
12.
To choose and appoint a president and faculty for each of the various
state institutions named herein, and to fix their compensation . . . .
14. To confer upon the executive board of each of said institutions such
authority relative to the immediate control and management, other than financial,
and the selection of the faculty, teachers, and employees, as may be deemed
expedient, and may confer upon the president and faculty such authority relative
to the immediate control, and management, other than financial, and the selection
o f teachers and employees, as may by said board be deemed fo r the best interest
o f such institutions. (Emphasis added.)
The plaintiff contended that the italicized portion of the statute is a legislative
grant of power to delegate the selection of teachers to the president and faculty. On the
other hand, the board asserted that the meaning was one of limitation; that is, that the
board may not confer on the president and faculty the authority to select teachers. Brown
also stated that “apparent authority” was all that was needed to establish a binding
contract.
The court discussed its earlier decision in State v. Ford (1944) wherein it
determined that the president did not have the authority to accept resignations and using
the reasoning of that case concluded that the legislative act relied upon by the plaintiff
restricted the board from delegating its powers if the position of the board was correct. It
also ruled that there was no implied authority for the college officials to contract with her
for the summer session.
The position taken by the board and its affirmation by the court are open to
question. The phrase “other than financial” could be read as a modification of the terms
“management” and “control” leading to the conclusion that president and faculty of the
college could have been granted authority to select teachers and employees. The real
47
question, which was not raised nor discussed by the court, went to the issue of whether
the board’s authority to control academic personnel policies was included in “the general
control and supervision of the state university . . under Article XI, Section 11 of the
Montana Constitution. The board, by taking the position which it did, was harmful to its
own interest. By arguing before the court .that this question was controlled by statute
would seem to indicate that the board failed to understand the nature of the grant of its
authority set forth in the constitution.
Status of the Trust Funds
The last case in which the court was called upon to enter a decision under the
Constitution of 1889 was In re Montana Trust and Legacy Fund (1964). The court was
asked by the Montana Legislative Council to enter an advisory opinion as to the
administration of the Montana Tmst and Legacy Fund. Specifically the court was asked:
1. May securities held by the Montana Trust and Legacy Fund be sold or traded
when the sale price is less than face value?
2. May securities held by the Montana Trust and Legacy Fund be sold or traded
when the sale price is less than the price paid for such securities?
The Montana Trust and Legacy Fund was created by Article XXI, Constitution of
Montana and consists of (I) the permanent funds created from inter vivos or testamentary
donations from natural persons a n d . . . permanent revenue fund for the University of
Montana. The court construed the constitutional provision establishing the original
amount of the fund as inseparable and inviolable parts as meaning that the principal of
48
each of the three funds may not be reduced below the total amount of the donations from
which the fund was established. The court ruled in answer to the first question that it
would be permissible to sell the securities in the fund at less than face value if the price
paid for the securities were less than their face value, provided the sales price was not less
than the purchase price.
In answer to the second question the court stated that it did not construe the word
inviolable as prohibiting the sale of securities at less than purchase price or face value or
the purchase thereof at a premium, provided the income gain resulting from such
transactions was partially used to restore the temporary loss of principle. However, the
court added one qualification. Section 16 of the EnabUng Act granted to Montana ninety
thousand acres of land for the use and support of agricultural colleges. The Congressional
Enactment of 1862 specifically provided that the principal of funds created by the sale of
the granted land “should forever remain unimpaired and undiminished.” Because of this
language the court concluded that securities purchased with funds created from the sale of
the lands granted by section 16 of the Enabling Act. may not be sold for less than the
purchase price.
Summary
Between 1945 and 1964, only four decisions affecting postsecondary education
were decided by the Montana Supreme Court, and only two of these directly involved
control and management. The others were concerned with who could vote and the sale
and. exchange of securities in the permanent revenue fund for the University of Montana.
49
The cases involving control and authority were decided using the rationale developed in
previous cases and, in Brown v. State Board of Education (1963), the decision, upholding
the boaid s position, is difficult to accept because its position was harmful to its own
interest and brought into question its understanding of the nature of its authority under the
constitution.
The New Constitution
Voting and College Trustees
Melton v. Oleson (1974) the plaintiff was seeking restoration of his voting
rights and to prevent his removal as a college trustee. In 1933, in the United States
District Court in Montana Melton pled guilty to three violations of federal liquor laws.
Forty years later the Flathead county attorney’s office filed a certified copy of the 1933
conviction with the county clerk and recorder along with its opinion that Melton had been
convicted of a felony. The clerk and recorder thereupon struck M elton’s name from the
voting rolls.
The county attorney’s office then advised the Board of Tmstees of Flathead Valley
Community College that Melton was no longer a registered voter and that his position as
college trustee should thereupon be vacant and the board so declared.
Under federal law the possible punishment that may be imposed determines
whether a given crime was a felony or a misdemeanor without regard to the sentence
actually imposed. In Montana, the sentence actually imposed after conviction determined
whether the defendant had been convicted of a felony.
Under the Montana Constitution it is the responsibility of the Montana legislature
to establish qualifications for holding public office and voting qualifications. Accordingly,
the court construed the state statutes relating to voter disqualification as meaning that a
Montana voter cannot be denied the right to vote because of conviction of an offense in
federal court that would not be a felony by Montana statutory definition and that the
character of an offense, whether a felony or a misdemeanor, must be determined by the
laws of the jurisdiction where the crime was committed. Therefore, Melton was not
disqualified from voting and his position as college trustee was not vacant.
Powers in General
Montana State University v, Ransier (1975).involved the power of the university
to require registration of vehicles on campus, to limit areas in which they could be parked,
and to assess fines. Ransier was a student who received two parking tickets. Each
contained a warning that if not paid within one week the fine would be doubled. He
appealed to the Traffic Appeals Committee, which upheld the validity of the tickets. He
then filed his action in district court.
The legislature passed an act providing that the regents of the Montana University
System were authorized to make rules and regulations at each unit of the University
System concerning the parking and operation of motor vehicles upon the grounds, streets,
drives, and alleys of each unit. The act authorized the regents to assess fees for parking
on campus, assess fines for violations of motor vehicle regulations, and establish a system
of appeals at each unit concerning parking violations.
The court held that the regulations Ransier allegedly violated were promulgated by
the president of Montana State University under the express authorization of the Board of
Regents and that the legislature may validly provide a criminal or penal sanction for the
violation of the rules and regulations which it may empower administrative authorities, to
enact. It determined that the legislature had empowered the Board of Regents to
promulgate regulations controlling vehicles on campus and provided a penalty for
violations, of those regulations.
By using the reasoning set forth above, the court avoided having to reach the
constitutional considerations which had been raised by the university concerning the
constitutional status of the Board of Regents. Specifically the court stated: “We recognize
the board of regents attained constitutional status under the 1972 Montana Constitution,
but definition of that status is unnecessary in the disposition of this appeal.”
This case presents the first pronouncement by the court of the newly acquired
status of the Board of Regents, that is, a constitutional department. During the next
several years the court would be called upon to give substance to this status and to define
the authority and limits of the Board of Regents and the legislature in the control and
supervision of postsecondary education.
52
Separate Boards
The first case in which the court was called upon to determine the powers of the
boards created by the Montana Constitution of 1972 was Board of Public Education v.
Judge (1975) and was a proceeding to determine the constitutionality of a statute
designating the State Board of Education as the State Board of Vocational Education.
The new constitution established three distinct boards concerned with state
education. They were: (I) State Board of Education composed of the Board of Regents
of Higher Education and the Board of Public Education with the responsibility for longrange planning, and for coordinating and evaluating policies and programs for the state’s
educational systems; (2) The government and control of the Montana University System
was vested in a Board of Regents of Higher Education which has full power,
responsibility, and authority to supervise, coordinate, manage and control the Montana
University System; and (3) A Board of Public Education to exercise general supervision
over the public school system.
Prior to the enactment of the contested law in 1975, the general supervision and
control of vocational education was vested in the Board of Public Education. Under the
new law the legislature attempted to take this responsibility away from the Board of Public
Education by transferring it to the State Board of Education and requiring it to adopt
policies to effect the development of a system of vocational educational.
The law also required the governor to appoint five persons from the State Board
of Education, three from the Board of Public Education and two from the Board of
53
Regents, designated the Vocational Education Board. This board was to have the
responsibility for the administration of the policies adopted and was to select an executive
officer who was responsible for administering vocational education.
The court reviewed the history of the supervision of education in Montana as
contained in the 1889 Montana Constitution Article XI, Section 11, which provided for
only one board to deal with state educational institutions and under which the state
legislature vested control and supervision of the state’s vocational education system. The
debate on Article X, Section 9,1972 Montana Constitution, which established three
boards, centered upon the issue of whether there should be a single board as in the 1889
Constitution, or two boards, one for postsecondary education and one for the public
school system (Constitutional Convention, Vol. 8) and the concept of two boards
prevailed. The third board, the State Board of Education, composed of the membership of
the other two boards, was only to review matters for presenting a unified budget, longrange planning, coordination, and evaluation. The court determined that it was the intent
to have a two board system with the third board to have no executive or administrative
powers other than those expressed in planning, coordinating and evaluating.
Notwithstanding the fact that vocational education and vo-tech are referred to
many times in the discussion and used interchangeably, the court observed that vocation^
education was included in the curriculum of nearly every high school in Montana while
vo-tech generally referred to the separate centers located in major Montana communities,
and it declared there was no question it was intended that vocational education was to be
54
. a responsibility of the Board of Public Education. Additionally, the court declared that it
was obvious the framers of the Constitution feared a super board and desired that the
authority of the State Board of Education be limited to long-range planning, coordination
and evaluation and that the attempted transfer of vocational education to the State Board
of Education was unconstitutional.
An interesting point which the court included in its decision but upon which it did
not expand was the court’s recognition of the Education and Public Lands Committee of
the Constitutional Convention report (Constitutional Convention, VoL 4) that the
responsibility for vocational education could be transferred to the Board of Regents from
the Board of Public Education, but there was no indication it could be transferred to the
Board of Education. This reading of the authority of the Board of Regents was obtained
in Article X, Section 9(2) (a), 1972 Montana Constitution when, after providing for the
authority of the Board of Regents, the framers of the constitution added: “. . . and shall
supervise and coordinate other public educational institutions assigned by law.”
Limits of Legislative Control
Board of Regents v. Judge (1975) is the only case where the court was called upon
to rule upon the limitation of power of legislative acts in conflict with the Board of
Regent’s constitutional authority to control and supervise the University System. The
specific provisions of two bills were at issue before the court: one appropriating monies to
the University System for the biennium and the other providing for a legislative finance
committee to approve budget amendments.
55
The law providing for the university budget contained a provision requiring the
Board of Regents to certify that the university would comply completely with the
following general and specific provisions:
. . (4) All moneys collected or received by
university system units . . . shall be deposited in the state treasury; (6) Salaiy increases for
presidents of units of the university system and for the commissioner of higher education
shall not exceed five percent each year of the biennium using fiscal 74-75 salaries as the
basis and the regents shall grant classified university employees salaries in accord with
House Joint Resolution 37.” The law also stated that all monies received from sources
other than the general fund could only be expended through a budget amendment
approved by the legislative finance committee. The other law set forth the definition of a
budget amendment and provided for the process for obtaining approval of such an
amendment.
Monies for the biennium were appropriated by various line items from various
state operating funds. In addition, each of the units of the University System and the
office of the Commissioner of Higher Education were each appropriated certain funds.
The Board of Regents urged the court to declare that line item appropriations of
general fund monies by the legislature infringed on the board’s authority granted by the
Constitution. And, counsel for the board, during oral argument before the court, stated
that the University System and its Board of Regents was a fourth branch of government.
The court stated that the other provisions of the Constitution negated this
argument, specifically Article III, Section I providing for three distinct branches of
56
government: legislative, executive, and judicial; Article V, Section I providing for a
legislature; and Article VIII, Section 12 requiring the legislature to insure strict
accountability of all revenue received and money spent by the state. Proceeding in its
evaluation of the Regent’s proposition the court stated that its previous rulings have
limited the scope of appropriation to the general fund and that the power to appropriate
does not extend to private funds received by state government which are restricted by law,
trust agreement, or contract to include the Montana Trust and Legacy Fund established by
the 1889 Constitution.
The court then stated that based on the constitutional provisions the principle of
regent independence was definitely intended by the drafters of the 1972 Montana
Constitution. At the same time, legislative control of postsecondary education through the
appropriations process remained. Therefore, the regents were a constitutional body in
M ontana government subject to the power of the legislature to appropriate and set the
public policy of the state.
The court continued that the. legislature could not do indirectly through the means
of line item appropriations and conditions what was impermissible for it to do directly.
And line item appropriations become constitutionally impermissible when the authority of
the regents to supervise, coordinate, manage and control the University System was
infringed by legislative control over expenditures. Therefore, the court continued, the
conditioning of University System appropriations by the Montana legislature and the
summary procedure for compliance were proper exercises of its appropriation powers to
the extent the conditions did not infringe on the constitutional power granted the regents.
This meant the conditions must be individually scrutinized to determine their propriety.
Based on its earlier discussion of the legislative appropriation power, the court
determined that certification could not be used as a boot-strapping devise to gain
legislative control over private moneys since private money that was restricted by law,
trust agreement, or contract were beyond the appropriation power.
The final issue upon which the court acted was the regent’s challenge to the
section limiting the salary increases for presidents of units of the University System and for
the Commissioner of Higher Education. The regent’s argued that this condition
represented an effort to abrogate the powers and prerogatives granted expressly and
absolutely to them by the 1972 Montana Constitution while the governor and Finance
Committee asserted the condition was a proper exercise of the legislative appropriation
power.
The court went on to assert that any decision with respect to appropriations
affected the management of the University System to some degree. Specifically, the
provision restricting the salary increases contained no legislative explanation. Nor was
there any provision for the Regents to object. The regents either complied or had to
forego the funds. Such seemingly minor conditions could ultimately affect academic
administrative and financial matters of substantial importance to the University System.
Control over college president salaries was not a minor matter and dictated
university personnel policy. This effect was reinforced by the final sentence of the section .
58
stating that the regents shall grant classified university employees salaries in accord with
House Joint Resolution 37 and a limitation on significant expenditures indicated a
complete disregard for the regents’ constitutional power. Inherent in the regents’ power
was the realization that the board was the competent body for determining priorities in
postsecondary education. An important priority is the hiring and keeping of competent
personnel and ,therefore, the court declared that the provision denied the regents the
power to function effectively by setting its own personnel policies and determining its own
priorities and declared the provision unconstitutional.
The impact of this case and the preceding case are of immense importance to the
control and governance of postsecondary education. With these rulings the court declared
that the role of the legislature had been nan-owed from one of defining all powers and
duties of the board to one of only those powers which it had been granted in the
constitution: appropriations, audit, terms of office of members of the Board of Regents,
and assigning additional educational institutions to the control of the boards. The court
further added to the board’s significance when it declared that it was a constitutional body
subject to the legislature’s power to appropriate and make public policy for the state.
Privacy and the Public’s Right to Know
In the Missoulian v. Board of Regents of Higher Education (1983) the court was
faced with several issues: (I) W hetherjob performance evaluations of university
presidents were matters of individual privacy protected by the Montana Constitution; (2)
W hether the university presidents’ privacy interest in job performance evaluations
59
exceeded the public’s constitutional and statutory right to know; and (3) Was it necessary
to close the meetings or are there other methods available for protecting privacy during
evaluation meetings.
The board had adopted procedures for the annual and periodic evaluation of
university presidents. In 1980, four presidents were evaluated under the annual review
procedures and two were evaluated under the periodic review procedures.
The Missoulian. at the board’s April, 1980, meeting, requested permission to
attend the performance evaluation of University of Montana President Bowers and to
review the evaluation document considered by the board. The request was denied on
grounds that the demands of individual privacy clearly exceeded the merits of public
disclosure. The Missoulian. at the Board’s May, 1980, meeting requested access to each
evaluation session. The request was denied.
The board noted that during consideration of the evaluation procedures prior to
their adoption, a copy of the proposed procedures was circulated to the members of the
press, including the Missoulian. No objection to the procedures was made by the
Missoulian. Also, during the meetings, no policy decisions or directives were made.
The Missoulian argued, that university presidents have no privacy interest in
performance evaluations. It contended that presidents can have no reasonable expectation
of privacy except in the narrow areas of personal health and family which do not affect job
performance. It also argued that the president’s job performance is a public matter which
60
society is unwilling to recognize as private and that the interweaving of public business
with the small amount of private matters discussed compelled open evaluations.
The court used a two-part test to determine whether a person had a
constitutionally protected privacy interest: whether the person involved had a subjective or
actual expectation of privacy and whether society was willing to recognize that
expectation as reasonable.
Applying the first part of the test the court found that the board’s written
evaluation policy stated that the self-evaluation would be confidential and the evaluation
meeting would be conducted in “executive session.” Therefore, the first part of the test
was clearly satisfied.
The more difficult question was whether these actual expectations of privacy were
reasonable. The Missoulian contended that much of the discussion concerned matters of
public record or public policy in which the presidents could have no privacy interests. The
court did not agree. The Missoulian argued further that the status of university presidents
so diminished their privacy rights that job performance evaluations were not protected by
the privacy clause. The court answered by stating that mere status did not control the
determination. University presidents did not waive their constitutional protections by
taking office and the sensitive nature of the presidential function also suggested all the
more reason to expect confidentiality in presidential evaluations. The court noted that
numerous administrative staff, faculty members and other university employees were
discussed at these evaluations, the matters discussed were of a sensitive nature, and the
discussions would reasonably be expected to remain confidential. Accordingly, the court
held that the university presidents’ job performance evaluations were matters of individual
privacy protected by Aiticle II, section 10 of the Montana Constitution.
The court determined that the issue of the privacy interest of the presidents and
other university personnel in confidential job performance evaluation sessions by the
Board of Regents clearly exceeded the merits of public disclosure. The determination was
based upon the fact that the Commissioner of Higher Education stated that public
disclosure would inhibit candid evaluations from faculty, staff, and other interviewees,
discourage presidents from making candid self-evaluations, and would damage the
presidents’ ability to govern. Additionally, allowing public disclosure of the comments of
faculty, staff, and other interviewees whose names or comments were discussed would
violate or jeopardize their privacy.
The final issue, alternative methods for protecting individual privacy in evaluation
meetings, suggested by the Missoulian. were dismissed as impractical and the court stated
that closure of meetings appeared to be the only practical and effective method of
conducting job performance evaluations.
Duty of Care to Minor
Graham v. Montana State University (1988) presented the court with the question
of the duty of care owed to a minor high school student who was participating in a
summer program at the university.
62
Kimberly Graham, a 16-year old student at Hays-Lodgepole High School,
participated in the Minority Apprenticeship Program (MAP) at the university during the
summer of 1984. The students in the program lived on-campus in a university dormitory
and worked as research assistants to university scientists. The university hired Vaschelle
Laforge as a residence hall advisor/supervisor for MAP participants. H erjob was to
enforce the rules of conduct adopted by the university for program participants, including:
"I. Consumption of alcoholic beverages in any form is strictly prohibited by all MAP
participants.”
Approximately two weeks after the program began Graham obtained LaForge’s
permission to visit the off-campus residence of Darryl J. Tincher. There was a party in
progress at the residence and Graham drank beer. Later that day Graham accepted a ride
on Tincher’s motorcycle and they proceeded to Big Sky, stopped at a bar and drank a
total of four mixed drinks between them. On the return trip to Bozeman, Tincher’s
motorcycle left the highway and Graham was seriously injured.
Graham’s parents argued that the university assumed a duty to protect Kimberly
because it took custody of her while she participated in the MAP program. The university
was also bound to exercise due care in supervising Kimberly, a duty it undertook when it
hosted the M AP program.
The court ruled that when the university undertook to have Kimberly live on its
campus and supervise her during the MAP program, it assumed a custodial role similar to
that imposed on a high school because Kimberly was a juvenile. Once the university
63
assumed that role, it was charged with exercising reasonable Care in supervising the MAP
participants.
The court went on to decide that Kimberly’s drinking was not the proximate cause
of her injuries and therefore the university was not responsible for her injuries.
Immunity from Suit
Mitchell v. University of Montana (1989) involved the status of the Board of
Regents and its immunity from suit. The case arose when Sandy Mitchell filed, an action
for wrongful discharge against the University, its president, and its controller. She alleged
that she was a certified public accountant and was employed by the University beginning
in 1978 and that, prior to her termination in 1981, she worked as an accounting supervisor
in the Controller’s office.
On October 9, 1981, she received a letter of termination from Joseph Cotton,
University Controller. She appealed her termination through the University Grievance
Committee which found the termination was unwarranted and recommended to the
University President and Cotton that she be reinstated.
She was reinstated, but in a new, allegedly difficult department. On February 22,
1983, the defendants terminated her from her employment a second time. Once again she
brought a grievance before the committee; however, this time the committee found just
cause for the termination.
The university asserted that the 1983 termination was based on just cause and
asserted that (I) all the defendants were immune from suit, (2) Montana Law did not
64
permit judicial review of routine personnel decisions of the Board of Regents and, even if
they were subject to review, they were not subject to review by a jury, and (3) the
defendants did not breach their obligation to deal with the plaintiff in good faith.
The court discussed only the first issue of immunity. The statute granting
immunity stated: “(1) As used in this section: (a) the term ‘governmental entity’ includes
the state, counties, municipalities, and school districts; (b) The term ‘legislative body’
includes the legislature. . . and any local governmental entity given legislative powers by
statute, including school boards.
Defendants argued that the Board of Regents, as the governing body of the
University of Montana, was the legislative body of the Montana University System, and
that President Bucklew and Cotton were officers and agents of that legislative body. Thus
they contended that the statute granted them immunity.
The court stated: “We disagree.” It declared that the Board of Regents was not a
local governmental entity given legislative powers by statute and thus not a legislative
body as contemplated by the language of the act. Additionally, the court quoted Article
XI, Section I of the 1972 Constitution which stated that local government units included
counties and incorporated cities and towns. The court looked at Title 7 of the Montana
Code, “Local Governments” and found nowhere in the title where the Board of Regents
or the University System was discussed. Rather, the court found the Board of Regents
and the Montana University System to be controlled by the provisions of Title 20
65
“Education.” Since the legislature chose not to include the Board of Regents in its
definition of a local governmental agency it was subject to suit.
Arbitrarily and Capiiciouslv
The last case presented to the court involving control was Petri v. Montana State
University (1993). In June of 1991, the university requested bids for two construction
projects, which were to be opened at 1:00 p.m. and 1:30 p.m. on June 20, 1991. The bid
openings were conducted by Cecilia Vaniman, an architect for the university. Petii
submitted a timely bid for one project, which was opened with the other bids at 1:00 p.m.
W hen it was 1:30 p.m. by the clock in the bid opening room, Vaniman announced the
closing of bids for the second project and the sole bid for the project was opened.
Minutes later Petri appeared in the room and attempted to submit a bid for the
second project. Vaniman refused to accept the bid and confirmed that the bid room clock
was accurate and Petri left the room. Several hours later he returned to Vaniman’s office
and asked her to reconsider. She again refused and he asked her to return his bid on the
first project. She complied with his request.
Petri alleged that the clock in the bidding room was three minutes fast as compared
with his watch. He obtained this information by having a retired U S. W est telephone
employee verify that the clock in the bid opening room was three minutes and eight
seconds fast according to a confidential U.S. West phone number for obtaining the correct
time. The university claimed that it could not be held responsible for coordinating its
clock with a time source not available to it. In addition, the U.S. W est time source had
not been established as more accurate than the watches of the people in the bidding room
or the clock in the bidding room.
Petri argued that Vaniman should have exercised her discretionary authority by
accepting his bid on the second project rather than by allowing him to withdraw his bid on
the first project. The university pointed out that, under federal government procurement
regulation, hand-carried late bids were almost always rejected. And, although Montana
state government contracts were not subject to the federal regulations, the record clearly
reflected the rejection of late bids to be the industry-wide practice. Yardman and two of
her supervisors testified that in hundreds of bid openings they had never accepted a late
bid.
The court ruled that treating lateness as a material irregularity in a government bid
was not acting arbitrarily and capriciously in rejecting a bid. As an additional factor the
court also noted that since Petri was not allowed to submit his bid on the second project,
there was no proof that his would have been the lowest bid meeting the requirements for
the project. Accordingly, the university had not violated a duty to award state contracts
to the lowest possible bidder.
Summary
With the adoption and ratification of the Montana Constitution of 1972 control
and governance of postsecondary education entered a new era. The new Constitution
brought new challenges to its meaning and interpretation, not the least of which concerned
the power and authority of the legislature and the newly created Board of Regents to
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administer and supervise the university system. While the court again declared that the
Constitution created three branches of government: legislative, executive, and judicial, it
did recognize that the regents were a constitutional body in Montana government. And, at
the same time, it stated that the power of the legislature, as defined by the new
Constitution, had been limited to appropriations, audit, terms of office of members of the
board, and assigning additional education institutions to the control of the board.
Following passage of the Constitution of 1972, the court has returned control and
supervision of the university system to the board of regents, the status that apparently
existed before the court’s decision in State v. Brannon (1929) wherein it ruled that the
board was part of the executive department and subject to legislative control. During this
period the court also upheld the authority of the board to make rales concerning privacy
and parking, allowed it to be sued, and determined that while the doctrine of in loco
parentis did not apply to adult college students it did apply to minor high school students
who were participating in on-campus university activities.
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CHAPTER 3
FACULTY AND STAFF
Introduction
This chapter presents and analyzes the decisions of the courts which have affected
employees of postsecondary education, both faculty and non-faculty. Interestingly, the
first cases, all arising during a fifteen-year period, also involved related issues of control
and governance.
During the period that the Montana Constitution of 1889 was in effect, the
Supreme Court of Montana was presented with only three cases involving postsecondary
education personnel issues. Two of these cases involved tenure and the other case
involved the power to prescribe duties of university personnel.
It was not until the late 1970’s that cases primarily involving personnel issues
began to be heard by the court. During these years the court was presented with myriad
issues involving faculty and staff. The cases described in this chapter will show the impact
of the changes brought about by the transfer of the control and supervision of the
University System from the legislature to the Board of Regents and the realignment of
control of the community colleges from high school districts to the Board of Regents.
69
The cases will be presented in two phases: those which occurred under the
M ontana Constitution of 1889, and those arising under the Montana Constitution of 1972.
Montana Constitution o f 1889
Power of Legislature
The first case which involved university personnel issues came before the court in
State v. Brannon (1929). The case, discussed in Chapter 2, commenced when the Public
Service Commission sought an order to compel R. E. Kirk, as state chemist to comply
with the provisions of state law and analyze and test gasoline and kerosene. Kirk was
employed as the head or chairman of the Department of Chemistry at the State College of
Agriculture and Mechanic Arts in Bozeman and, refused in his request to have the
Commission pay the salary of an assistant to conduct the tests, he refused to do any
testing of further samples of gasoline and kerosene.
The court, in upholding the provisions of the law, stated that the legislature, vested
with the authority to promulgate laws to prescribe or regulate the functions of the
university or one of its units, could broaden the functions of the university or any of its
units. Accordingly, the legislature could require the head of the Department of Chemistry
to perform the additional duty of analyzing samples of gasoline and kerosene as part of his
position.
•
As for the personnel issue the court went on to state that there was no violation of
Mr. Kirk’s contract with the state. He assumed his position after the law came into effect,
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and the law became part of his contract. Since there were no additional duties imposed
upon him as the state chemist there was no violation of his contract.
W hile the authority of the legislature to prescribe the duties of the Board of
Education cannot be denied, the question arises as to whether this authority included the
power to prescribe the duties of a particular professor. The court appears to have left
unanswered the question of whether the legislature was prescribing the powers and duties
of the board, which authority it had under the Constitution, or controlling and supervising
the university, which authority was granted to the Board of Education.
Faculty arid Tenure
The next case which came before the court in which the personnel question was
one of several issues was State v. Avers (1939), discussed in Chapter 2. The personnel
issue involved was the status of Professor Keeney after his completion of three years of
employment as Librarian and Professor of Library Economy at the university in Missoula.
Professor Keeney’s employment began on September I, 1931, and his initial
contract was for one year ending September 1 , 1932. Thereafter, he was given annual
contracts for the periods ending September I of 1933,1934,1935, 1936, and 1937. Each
of these contracts had regulations concerning tenure printed on the reverse side of the
contract, paragraph 2, which stated: “ . . . that reappointment after three years of service
shall be deemed a permanent appointment.” However, in the contract for the year ending
September I, 1937, this provision had been stricken and on April 6,1937, Professor
Keeney was notified he would not be offered another contract and his employment would
end.
The court discussed the Board of Education’s authority to promulgate regulations
establishing tenure and their validity. It then turned its attention to the contract for the
year ending September I, 1937, and declared that the board’s striking of the regulation
covering permanent appointment from the contract had no effect upon Professor Keeney’s
status. Even though each of the contracts signed by Professor Keeney for the fourth
through sixth years was only for one year, after his third year of service, the length of
reappointment was immaterial. Reappointment, for one year or for twenty-five, was
reappointment. During the first three years of his service, while serving on a temporary
appointment, simply without renewing the contract his appointment would have lapsed
and become void. However, since he had attained permanent appointment status, his
employment automatically continued unless terminated after an investigation and a
hearing.
The last case, also discussed in the previous chapter, was State v. Ford (1944).
Paul C. Ford began his employment with the University at Missoula in September of 1911.
On October 2,1937, Professor Phillips delivered his written resignation to George F.
Simmons, President of Montana State University. On December 12,1937, Professor
Phillips signed a withdrawal of his resignation which was delivered to President Simmons.
At its meeting on December 13,1937, the Board of Education accepted Professor
Phillips’ resignation.
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The court discussed the relationship between the Board of Education, the
president of the university, and faculty members and ruled the relationship was that of
employer and employee and contractual in nature. It determined Phillips had obtained the
status of permanent tenure and that the president acted as the medium of communication
between the board and the officers of the university and in so doing the board had
authorized professors of the university to deliver communications such as Professor
Phillips’ resignation to the president for board action. When Phillips had his letter of
resignation delivered to Simmons it was as if he had delivered the withdrawal to the board
itself and it was the duty of Simmons to call the attention of the board to the withdrawal
before it acted on the resignation. A tender of resignation was nothing more than an offer
to resign, that is, to terminate the contract of employment. Since it was only an offer,
Phillips was entitled to withdraw it at any time before it was accepted by the board.
Because of the contractual relationship of the kind involved here, it became effective when
accepted. So, an offer by Phillips to terminate his appointment by resignation was
effectual only when the resignation was duly accepted by the body whose duty it was to
make or terminate the appointment, in this case, the Board of Education.
Summary
Each of the cases involved interrelated issues of control and governance and
personnel. The court, in entering its decision on the personnel issues, had to. decide
whether the governing body which was exercising the power, be it the legislature or the
Board of Education, had the authority to promulgate the actions which it attempted to
73
cany out. In ruling on the authority of the legislature the court emphasized its
constitutional authority; when ruling on the authority of the Board of Education it spoke
in terms of the powers granted it by the legislature.
It is also interesting to note that the court, in the actions involving the Board of
Education, upheld the contentions of the individual professors while in its ruling on the
legislature, it upheld the position of the legislature. And, in the actions where the court
ruled for the employee, the cases involved tenure and employment rights whereas the case
decided against the employee involved the assignment of additional duties as par t of his
position.
Montana Constitution of 1972
Retirement
The first case brought to the court during this period was State v. State of
Montana Teachers’ Retirement Board (1977) and involved the Dean of the University of
Montana School of Law, Robert E. Sullivan. He. had been previously employed as a
faculty member at Notre Dame University from September 1947 to September 1954. In
1954 he moved to the University of Montana School of Law faculty and in 1976, while a
member of the Montana Teachers’ Retirement System, applied for seven year's credit in
the retirement system on the basis of his Notre Dame teaching service. He tendered his
check for back contribution payments as required by the statutes to the board and, at its
April 1976 meeting the board refused his application and returned his check. The board
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based its denial on the fact that the statute in effect when Dean Sullivan became a member
of the Montana Teachers’ Retirement System allowed retirement credit only for teaching
service in out-of-state public schools, which excluded service in out-of-state private
schools, such as Notre Dame.
The court’s decision was premised"on the basis that retirement benefits in the
retirement system were a matter of contract. As such, the terms of each teacher’s
retirement contract was determined by the terms of the retirement system statute in effect
at the time the teacher became a member of the retirement system. The statute in effect at
the time Dean Sullivanjoined the retirement system provided: “Any teacher who has
become employed as a teacher in M ontana. . . may receive credit for service for out-ofstate teaching employment provided . . .
While the statue seemed perfectly clear the Board contended that the act had. to be
read in its entirety and the legislature, in passing the act, intended to benefit only public
school teachers. To support their contention the board relied on the act’s definition of
teacher which stated: “ . . . any teacher in the public elementary and high schools of the
state, and the university of Montana.” Therefore, the board contented that Dean Sullivan
could not meet the statutory definition of “teacher” for his service at Notre Dame
University.
The court agreed with the board that the act was enacted to benefit public school
teachers and excluded private school teachers. Further, it agreed with the board that no
75
• teacher in a private school could ever meet the definition of “teacher” and qualify for
retirement benefits until he became a teacher in a public school of Montana.
However, the court stipulated that once an individual became a Montana public
school teacher the section relied upon by Dean Sullivan controlled whether he received
credit for out-of-state service. And, to qualify for out-of-state teaching service credit the
statute required the applicant to be “Any teacher who has become employed as a teacher
in Montana . . . ” The court reasoned that the second use of the term “teacher” was used ■
in its statutoiy sense; that is, one must be employed as a public school teacher in Montana
before he was eligible for out-of-state retirement credit in the Montana Teachers’
Retirement System.
Continuing, the court stated that the first use of “teacher” in the quoted section
could not have been used as it was defined in the statute because to do so would render
the section a nullity. If used as defined in the statute before becoming employed as a
teacher in Montana, no individual could meet the statutoiy definition of “teacher” because
he was not then a teacher in the state of Montana. If such interpretation were the case, no
out-of-state credit could be given to any teacher, public or private, if the statutory
definition was applied to the first use of the word “teacher”. Accordingly, the court
reasoned that the first use of the word “teacher” had to mean the commonly understood
definition, that is, one who teaches or instructs others.
The court said that since the legislature did not incorporate a policy section into
the act it could only hypothesize as to the legislative intent in enacting the statute granting
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out-of-state credit and it reasoned that the statute was enacted to attract qualified teachers
from outside the state into the Montana public school system. It went on to state that that
purpose would be best served by providing attractive retirement benefits to qualified outof-state private school and public school teachers alike.
Lastly, the court countered the claim of the board that it had consistently
interpreted the statute to disallow credit for out-of-state private school teaching and that
the court should respect this interpretation. It stated that even if it was assumed the board
had consistently interpreted that statute to disallow credit for private out-of-state teaching
service, it was not bound by that interpretation. While it was true that the board’s
construction of the statute was entitled to consideration by the Court it was likewise the
Court’s duty to disregard such an administrative determination when it was contrary to the
plain meaning of the statute.
Burlington Northern, Inc, v. Flathead County (1978) presented the question of the
status of community college teachers and the ability of counties to levy a tax to finance
teachers’ retirement fund contributions. In setting the levies to finance the budget of
Flathead Valley Community College District, the Board of County Commissioners
approved an item as the district’s teachers’ retirement fund contribution. Flathead County
assessed Burlington Northern for its share of this levy and it paid one-half of the levy in
November 1974 under protest.
After setting forth the proposition that community college districts are subject to
the provisions of the teachers’ retirement system and that community college teachers are
77
eligible for the benefits provided under the system the court turned to a discussion of the
history of community colleges in the state.
Prior to 1971, community colleges operated under and were governed by the same
statutes that governed high school districts. When they were first organized they were
under the supervision of the state superintendent of public instruction and in 1965 the
legislature placed them under the supervision of the state Board of Education. In 1971,
the legislature recodified all laws relating to school districts. Under this recodification the
state Board of Education was to retain supervision over community colleges and the
community colleges were to be budgeted and financed under high school district
budgeting and financial provisions. Later, in the same session, the 1971 legislature made
two changes in its earlier recodification of school laws. It placed community colleges
under the supervision of the Board of Regents and it replaced the section which provided
for financing community college districts under high school budgeting and financing
provisions with a new system for financing community college districts separately from the
School Foundation Program,
In disposing of the railroad’s argument the court stated that the statutes
establishing the teachers’ retirement system set out the various funds to be maintained by
the system. Included in that section was a requirement that community college districts
“budget and pay” for the employer’s contributions to the pension accumulation fund.
Further, the statute required the trustees of a community college district to establish a
retirement fund, to calculate contributions to the funds, to adopt a retirement fund budget,
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and to pay employer contributions. Accordingly, the county commissioners were
authorized to levy a special tax to finance the teachers’ retirement fund contributions of
community college districts.
Community College Tenure
Sibert v. Community College of Flathead County (1978) was the court’s first
opportunity to decide the authority to grant tenure within a community college. Victor I.
Sibert was hired in July 1969 as the Manager of Services by the Community College
District of Flathead County. It was an administrative position and Sibert was not required
to perform any teaching duties nor did the position require a teaching certificate.
All of the annual contracts under which Sibert was employed were identical except
for salary terms and length of contract, either eleven or twelve months and each contract
contained the provision that it was subject to the regulations and policies of the board.
During the term of his employment the Faculty Handbook provided:
AU full-time professional faculty (defined in this document as teaching
faculty and professional staff) except the president shaU become eligible to be
placed on continuing contract status. Beginning with the appointment, the
probationary period shall not exceed three years, at which time he wiU be placed
on tenure or be notified that he will not be appointed for the fifth.
In March 1976 the community college discontinued the position of Manager of
Services and terminated Sibert. Sibert argued that he should have been granted tenure
status.
The court looked at the statute defining the powers of school districts to grant
tenure: “Whenever a teacher. . . in a position requiring teacher certification. . . ” and its
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uniqueness in public contracts of employment. Declaring its basis to be academic
freedom, that is, freedom within the law to teach the truth and to stimulate the thinking of
free men in a society without fear of reprisal, it went on to state that its scope assures,
with certain exceptions, both continuing employment and economic security. It continued
that society had long ago determined the desirability of teacher tenure and Montana had
enacted legislation to implement it as public policy. The court went on to state that there
was no public need for such assurances for other school district employees and the statute
stated such when it said: “The trustees of any district shall have the power and it shall be
its duty: I) to employ and dismiss administrative personnel. . . . ”
. The district trustee’s granting of tenure, in the absence of a statute conferring
authority upon them to do so, would be considered ultra vires, that is, beyond or without
authority. The school district was a public corporation with limited powers, only able to
exercise those powers which it had been granted by law and implied in the exercise of
those powers expressly granted. Accordingly, a community college could not grant
continuing contract status (tenure) except to those persons specifically authorized to
receive such status. Since Sibert was not a teacher and did not hold a position for which
teacher certification was required he could not be granted such status.
Wrongful Tennination
Ford v. The University of Montana (1979) involved an action brought by Bonnie
Ford against her employer, the University of Montana, and bargaining unit, Missoula
Typographical union No. 277. She claimed she was wrongfully assigned to a night shift
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by the union and wrongly terminated from employment by the university when she refused
to work the night shift.
Ford was hired as an apprentice by the university to work in the print shop on
Novembei I, 1972, and on November 13, 1972, Al Devore, who had been a journeyman
printer since 1948, was hired. When she was hired the union bylaws granted her no
“priority standing”, that is, no seniority until completion of her training and attainment of
journeyman status. However, on January I, 1973, the bylaws were amended so that
apprentices were granted priority standing at the beginning of their second year of
apprenticeship and on November 1 ,1973, she commenced her second year of
apprenticeship and attained priority status. Devore, a journeyman, had priority status as of
November 13, 1972, the date of his hiring.
Under an agreement entered into between the university and the union in October
1975, premium pay for night shift work was eliminated and all jobs were declared open to
be reassigned in order of choice by seniority. On November 1 , 1975, Ford attained
journeyman status and, on the same day, the union posted the priority standings listing.
Devore as senior to Ford. Both requested day positions and the last day job went to
Devore and Ford was placed on the night shift.
After beginning work on the night shift she began suffering from general malaise,
insomnia and depression and her doctor advised her that her condition would not improve
unless she was placed on the day shift or found another position where she could work
daytime hours.
On March 2, 1977, she filed a grievance with the union claiming she had been
hired before Devore and under the new agreement she should have been awarded the last
day shift job. At a special meeting of the union to consider her grievance, the members
concluded that Devore had greater seniority than Ford, and her claim was barred because
she had not submitted it within twenty days from the occurrence of the event giving rise to
the grievance.
On February 22, 1977, Ford stopped going to work and requested sick leave. On
March 23, 1977, the manager of the print shop advised her by letter that her absence was
causing a serious personnel shortage and that if she did not return to work by April 4,
1977, she would be terminated and replaced. She did not return and was terminated on
April 4,1977.
.
.
■
Ford did not allege any fraud or bad faith on the part of the union or that the vote
of the union membership, which determined that her grievance was without merit, was in
any manner improper, dishonest, or the product of bias or collusion. Since none of these
elements were proved by evidence, the court ruled that the mere fact that she disagreed
with the decision of the union was not a sufficient basis for finding a breach of the duty of
fair representation by the union.
The court then considered her claim against the university. Ford claimed that she
stayed away from work on.the advice of her doctor and that her absence was therefore
“sick leave.” However, it was shown she had exhausted her sick leave and her absence
from work had been unauthorized. There was a provision in the collective bargaining
agreement that if an employee had exhausted their sick leave they could charge the
absence to vacation or leave without pay, whichever they preferred. However, this
provision had to be approved by the employer, and Ford neither sought nor was given
either. Further, the court found she was terminated only after the university had complied
with the termination requirements of the agreement and its termination of her was
supported by the evidence and correct.
College and University Tenure
Keiser v. State Board of Regents of Higher Education (1981) was the first case
discussing tenure rights for professionals in the University System. Maijorie B. Keiser
• brought an action contending that the “continuous tenure” term of her last contract as
Director of the School of Home Economics at Montana State University entitled her to
receive the salary and the terms of that last contract, even though she was no longer
employed as the Director.
She started her employment with the university on January 15,1968, as a
“Professor and Director” of the School of Home Economics. Her appointment was for
the remainder of the academic year and her tenure status was described on her contract as
“annual” with a salary of $18,000. She signed annual contracts for employment for the
1968-69 and 1969-70 academic years under the same tenure status. During the 1969-70
academic year she was recommended for “continuous tenure’ with a rank of full professor.
She signed a contract for academic years 1970-71,1971-72,1972-73,1973-74,
and 1974-75. In each year she was employed as director, her rank was professor, and her
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tenure status was described as “Permanent”. In December 1974, she reported that her
administrative duties and research could not be carried out during the ten-month academic
term and suggested that she be given a twelve-month contract.
For the next year she was given a contract for the fiscal year extending from July
I, 1975, to June 30, 1976, in which she was employed as the school director, held the rank
of professor, and her tenure status was “continuous” , with a salary of $27,500, of which
$2,000 was denominated to be “for directorship”. Again, in fiscal year 1976-77, she was
given the same contract with the same provisions.
In fiscal year 1977-78 she entered into her last contract as Director of the School
of Home Economics. The contract stated that she held the rank of professor, her tenure
status was “continuous”, and her salary was $30,000 with no allocation of her salary for
the directorship.
In 1978, Dr. Tietz, as President of Montana State University, reorganized the
administrative hierarchy in such a manner that the directorship of home economics was no
longer open to Keiser and she was offered a ten-month contract for academic year 197879, as a Professor of Home Economics, tenure status as “continuous”, and a salary of
$25,000. She signed the contract under protest stating the contract offered was a
violation of her rights as a tenured faculty member with a salary of $30,000 for fiscal year
1978-79.
The court noted the provisions of the tenure regulations which were part of
Keiser’s contract wherein it was stated:
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5. Continuous Tenure Appointments. The appointment of a member of
the professional staff beginning his or her eighth year of service constitute an
award of continuous tenure status___ The appointment of a member of the
professional staff beginning his or her fifth year or its equivalent of full-time service
at the institution in the rank of associate professor or of professor constitutes an
award of continuous service.
Once the professional staff member qualifies for and is granted tenure, his
professional faculty contract of employment, and his tenure, shall be with the
appropriate institution within the Montana University System and not with the
Montana University System.
The court noted that the term “continuous tenure” was not defined in any of
R eiser’s contracts and that the term was the core of the case. It then discussed the
provisions of the 1977-78 contract and stated that nothing contained in the contract
reflected anything but that Reiser’s tenure, with rank of professor, was for a $30,000
salary, and for a fiscal year. And, unlike the previous contracts, there was no allocation of
salary for her administrative duties in the contract.
The court entered into a discussion of tenure stating that there was no
constitutional or statutory right to tenure for professionals in the University System in
Montana. Tenure rights, if they existed, had to be found in the contracts of employment
between the University System and the professional. At Montana State University each
professional contract was negotiated individually, and, therefore, the court could not refer
to the contracts of other professionals for guidance as to what Montana State University
and Reiser meant when they negotiated and executed her 1977-78 employment contract.
Tenure, the court continued, was the fact, manner, or means of holding possession
or control of that which was one’s own and that a common characteristic of all
employment tenure agreements was that the institution made a general commitment for
employment which was generally expected to continue, with the employee’s consent, until
his death or retirement. Tenure was the status which protected a professional from
dismissal, except for incompetence or serious misconduct, and was a means to certain
ends; specifically, freedom of teaching and research and of extramural activities, and a
sufficient degree of economic security to make the profession attractive to men and
women of ability. Hence, freedom and economic security were indispensable to the
success of an institution in fulfilling its obligations to its students and to society.
If academic freedom and economic security were the goals of tenure the court
reasoned that it had to look at what the parties had in mind when they entered into the
1977-78 employment contract. The essential elements of that contract which were subject
to tenure were: (I) the professional rank, (2) the salary, and (3) the number of months
contracted for. The court stated that tenure included both salary and the fiscal year term
by the fact that the university drew up the contract and it was completely within its power
to describe the tenure in other terms.
Since it was within the university’s power to specify any deviation from the
previous year, the terms of the 1977-78 contract were construed to be in favor of the
professional and the court determined that her contract for 1978-79 was the fiscal year for
her full salary of $30,000.
Justice Harrison dissented and stated he could find no authority indicating that a
concept of nonstatutory tenure provided a guarantee of a particular salary or a term of
contract. On the contrary, he felt the authorities indicated a general consensus that while
86
there was not precise definition of the non-statutory tenure concept, the rights accorded
by the latter were essentially procedural, it assured against a refusal to reappoint the
faculty unless and until certain “due process” procedures were adhered to.
He referred to Sibert v. Community .College of Flathead County (1978) above,
where the court denied faculty tenure to an administrative position. Although the case
dealt with the interpretation and application of statutory language covering teacher tenure
he believed the reasoning which the court used in reaching its decision was applicable to
this case. He stated that faculty tenure at Montana State University was not an inherent
employment right, nor was it one which had been created or defined by statute. It was a
right which resulted, if at all, from an express grant of the governing body of the Montana
University System, which was the board of regents which received its powers from the
M ontana Constitution. He reasoned that the court had to look at the actions and
enactments of the governing body of the University System to find if it had made such a
grant.
The rules of the Board of Regents, which were printed on Reiser’s contract
provided in paragraph 7, “Transfer of Titles” that:
Transfer of Titles. The offices and titles of deans, assistant deans,
directors, heads of department, and chairmen may be transferred by the president
of the institution, in his discretion, from one member of the professional staff to
another as the interests of the institution may require. (Emphasis added.)
Dr. Reiser held the office of Director of the School of Home Economics at the
“discretion” of the president of Montana State University and she, like other
administrators, did not and could not acquire tenure to the position, salary, contract term
or any other privilege of that office. And, he concluded, by her contract, when she ceased
being employed as a director, with the director-s salary and term, she once again became a
tenured professor entitled to the salary accompanying that position.
The next tenure issue was presented in Akhtar v. Van de Wetering H 982V M.
Iqbal Akhtar was an Assistant Professor in the Department of Economics at Eastern
Montana College where he had been employed since 1975. He applied for tenure
according to the faculty contract in October 1978, and submitted his application to the
Unit, Rank, and Tenure Committee. After consideration, the committee made a positive
recommendation to the College Rank and Tenure Committee. In January 1979, Robert
McRae, Dean of the Liberal Arts School, forwarded an unfavorable recommendation
regarding Dr; Akhtar’s tenure application to this committee with a copy to Lany W.
Jones, Academic Vice-President.
The College Rank and Tenure Committee sent a favorable recommendation to the
academic vice-president in March 1979, who forwarded Akhtar’s application with his
negative recommendation to President John Van de Wetering that same month. On April
17,T 979, the president informed Akhtar of his decision not to award tenure.
In May 1979, the president received a letter from Professor Gaghan, Chairman of
the Department of Social Sciences, on behalf of the department, asking the president to
reconsider his decision and protesting the use of the student evaluation instrument. The
president requested a reevaluation of Akhtar’s application excluding the student evaluation
test from consideration. Later that month, Dean McRae submitted his reevaluation to the
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vice-president, which remained unfavorable. The vice-president submitted his reevaluation
to the president reaffirming his negative recommendation. The president then reaffirmed
his denial of tenure to Akhtar.
Akhtar filed suit claiming violation of Title IV of the Civil Rights Act of 1964, and
equal protection rights of Article II, Section 4, of the Constitution of Montana and the
Fourteenth Amendment to the United States Constitution.
Akhtar claimed the denial of his tenure request violated a liberty interest by
imposing a stigma on him which impaired his freedom to obtain other employment. The
court dismissed this claim stating the failure to receive tenure did not place such a stigma
on him as to deprive him of a liberty interest.
)
He also argued that having taught the requisite number of years and obtained the
academic rank of assistant professor, he had satisfied the objective requirements for tenure
at Eastern Montana College and thereby had sufficient entitlement to tenure to require due
process protections. The court looked at the policies of Eastern Montana College which
required faculty members applying for. tenure to present evidence showing excellence in
teaching, research, and public service and found that a protected right to tenure did not
vest with Akhtar’s eligibility alone. It stated that his satisfaction of the quantitative
requirements simply entitled him to consideration for tenure but did not, on its own,
establish an entitlement sufficient to constitute a protected property interest.
Akhtar also cited as sources for his property right interest the 1975-1977 faculty
contract, the codification of rank and tenure matters and the traditional and promulgated
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policy of the institution. The faculty contract set out the rules and criteria for tenure; the
codification clarified the contract tenure provisions; and the policy to which he referred
was the “Final Report on Promotion and Tenure for 1977-78” issued to the faculty by
President Van de Wetering. Akhtar argued that with these policies and procedures he had
acquired a protected property interest in tenure.
In answer to these contentions the court stated that an employee handbook
distributed after an employee was hired did not become part of that employee’s
employment contract. Additionally, the codification on which Akhtar relied was drafted
by the Rank and Tenure Committee specifically to clarify both the faculty contract and the
handbook and was not a part of the contract.
Akhtar’s contention that the president’s statement was a “published policy” and,
therefore, part of his contract included a statement of the basis upon which the president
reviewed promotion and tenure cases that year. He acknowledged the importance of the
recommendation of the candidate’s department colleagues and stated: “It would be
inappropriate for me to interfere with that recommendation for other than procedural
reasons except under extraordinary circumstances.” The court found the president’s
action in the denial of Akhtar’s tenure not to be in contradiction to his statement. He was
faced with inconsistent recommendations and a tie vote that necessitated his final
determination. Given this situation, the president asked both the dean and vice-president
to reevaluate Dr. Akhtar’s application excluding the student evaluation and their
recommendations remained the same.
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The court differentiated Keiser v. State Board of Resents of Higher Education
(1981) from this case. Dr. Keiser had been granted tenure and her property interest in that
tenure had clearly vested and the question to be resolved was what tenure consisted of. In
the instant case the question was an entirely different one: whether a protected right had
vested.
Akhtar claimed he was discriminated against because he was treated differently
from other tenure candidates since a different standard of excellence was applied to his
tenure evaluation than to others. The court set forth the Board of Regents’ general
control and supervision of the Montana University System including the duty to appoint
both president and faculty for each institution. In turn, the president of each institution
was charged with the control and management of that unit. One of the procedures
maintained under this authority was the tenure system. Therefore, actions by the president
and the Board of Regents regarding tenure were state actions and a discriminatory
application of the tenure process would be an unconstitutional denial of equal protection.
Looking at Eastern Montana College’s tenure process the court noted that the
evaluation of candidates was made in three basic areas: teaching, research, and public
service. Publication was one of a number of factors considered in the process. Dean
McRae testified that he evaluated all eight tenure candidates using the basic criteria and
developed a rank order of candidates in which Dr. Akhtar ranked eighth.
The court continued that the state had a strong interest in maintaining the quality
and academic freedom of its postsecondary education system and the tenure process
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served that dual purpose. By evaluating a number of areas of performance a broad basis
of determination was provided and, therefore, absent an arbitrary or discriminatoiy
treatment of Dr. Akhtar’s tenure application, it could find no denial of equal protection.
Justice Morrison, joined by Justice Shea, dissented and said that President Van de
Wetering issued a memorandum containing tenure policy on May 23,1977, stating:
By long tradition, the primary responsibility for tenure decisions must rest
with one’s colleagues in his department for they are best qualified to judge the
probationary faculty member and to assess his role in the plans for the future of the
departm ent-----It would be inappropriate for me to interfere with the
recommendation for other than procedural reasons except under extraordinary
circumstances. (Emphasis added.)
Akhtar was denied tenure, although he received a favorable recommendation from
the college “rank and tenure committee.” The record in the case was devoid of evidence
which would constitute extraordinary circumstances and under the policy articulated by
the president the only basis for overriding the rank and tenure committee’s
recommendation was extraordinary circumstances. Therefore, Akhtar reasoned the court
should have ruled in his favor and granted tenure.
A month later the court was again presented with another case involving tenure
from Eastern Montana College in Leland v. Hevwood (1982). James Leland was hired by
Eastern Montana College in 1966 as a non-tenured philosophy and humanities professor.
From 1968 to 1970 he took a leave of absence, without pay, to work on his doctorate. He
returned to Eastern and was promoted to assistant professor in 1970.
In February, 1973, Leland applied to the College Rank and Tenure Committee for
promotion to associate professor, which would entitle him to tenure. The committee
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informed him he would not, be recommended for the promotion because it had been made
aware he was to be recommended for a “terminal contract” at the April 1973, meeting of
the Board of Regents. A “terminal contract” was one in which the professor was hired to
teach for another school year, and then be terminated.
On the day following his application Leland was notified by the Chairman of the
Division of Humanities that he had recommended to the Dean of the College of Liberal
Arts that Leland not be reappointed as an assistant professor, but instead be offered a
“terminal contract” for the 1973-74 school year. The dean of the college informed Leland
he supported the recommendation because Leland allegedly had been making unacceptable
advances toward female students, had been conducting classes while under the influence
of alcohol, and had taken one of his classes to the Student Union.
Leland then wrote Professor Fargo, President of Eastern Montana College’s
Faculty Senate, requesting a hearing and a written statement of the allegations of
misconduct which led to his termination. On March 6,1973, the requests were presented
to the Faculty Senate, and the next day Leland wrote a letter to State Representative
Lockrem criticizing the funding of the science building at Eastern and the number of
Eastern’s administrative personnel. On April 1 1 ,1973, Leland was notified that the Board
of Regents had approved the offer of a “terminal contract” to him.
Leland requested, but was denied, a meeting with the Board of Regents. He
received the contract under the normal procedure requiring him to sign and return it within
twenty-one days. On April 27,1973, his attorney requested that the Board of Regents
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extend the time in which Leland could accept the contract. However, the board demanded
that he immediately sign and return the contract, or it would consider the contact as
voided and terminate his employment on June 30, 1973. Later he was told that the board,
at its May 21,1973, meeting, had terminated his employment effective June 30,1973,
because he had not signed and returned the terminal contract for 1973-74.
The opinion of the court, delivered by Justice Shea, who had dissented in the
court’s decision in Akhtar v. Van de Wetering (1982) above, rejected Leland’s contention
that he believed the Board of Regents had waived the twenty-one day time limit fo r'
accepting the contract in its letter of May 7, 1973. The Regents’ letter unequivocally
stated that the contract be signed and submitted to the President of Eastern Montana
College immediately upon receipt or his contract would be considered as voided.
Additionally, the letter from his attorney did not show that Leland had accepted the
offered contract and requested that the board extend the time in which Leland could
accept the contract.
Leland also argued that President Heywood’s Address to the Faculty at the
beginning of the 1972-73 academic year supplemented the existing rules and regulations
on tenure. The address was given several months after Leland had signed his contract for
the 1972-73 academic year and in it President Heywood stated that he intended to request
that the Board of Regents change the existing tenure system to the system advocated by
the American Association of University Professors. The court, quoting Brown v. State
Board of Education (1963), discussed in Chapter 2, stated that college administrators have
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no authority to contract with faculty members on terms different than those approved by
the Board of Regents and therefore Leland could not establish that the written tenure
provisions of his contract were supplemented by any oral representations of Eastern’s
administration.
Leland claimed he was entitled to tenure and that his dismissal for cause was based
on President Heywood’s oral representations. The court dismissed that claim by noting
Leland did not accept the offered contract and he was not entitled to rely on President
Heywood’s statements. It continued that, by law, a tenured teacher cannot be discharged
except for cause upon written charges and pursuant to certain procedures and a nontenured teacher was protected to some extent during his one-year term. But the rules
provided no real protection for a non-tenured teacher who simply was not re-employed for
the next year. Since Leland was not tenured he was not removed for cause; rather, he was
a non-tenured teacher who was not retained.
Libel and Slander
Small v. McRae (1982) was instituted as a result of the termination of Professor .
Aaron Small as Acting Chairman of the English Department at Eastern Montana College.
In October 1980, Robert McRae, Dean of the School of Liberal Arts, terminated Small’s
chairmanship and addressed and delivered a memorandum to him as a way of notifying
him and the other departments of the change, as provided for in the collective bargaining
agreement. The termination resulted in the loss of a stipend of $900 per academic year
and $150 per summer session, but did not affect Small’s academic rank, tenure, base
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salary, or membership in the bargaining unit. Instead of following the grievance procedure
in the bargaining agreement Small filed a libel action against Dean McRae.
Small contended that he was deprived of constitutional due process because the
memorandum which led to his dismissal as chairman placed in issue his good name,
reputation, honor and integrity without giving him notice or opportunity to be heard. The
court concluded that the governmental interest in orderly administration necessary to
prevent disruption of the educational process was sufficient to allow summary dismissal of
department chairmen when the requirements of due process are accommodated through
the grievance and arbitration procedure contained in the collective bargaining agreement.
It reasoned that the procedures gave aggrieved faculty members the opportunity to
challenge any alleged breach, misinterpretation or improper application of the terms of the
collective bargaining agreement. And, although they were not exhausted by Small, they
were available and, as such, afforded him an opportunity to be heard at a meaningful time
and in a meaningful manner.
In ruling on Small’s claim of denial of first amendment privileges, the court looked
at the memorandum of Dean McRae and noted that it gave as reasons for Small’s loss of
title his inadequate leadership, his failure to bring a polarized department into a smoother
functioning unit, the fact that acrimony had increased within the department, his failure to
effectively and conscientiously handle the administrative detail associated with the office,
and his failure to properly coordinate the newly instituted mass placement process for
freshman composition.
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The provision in the collective bargaining agreement which allowed the dean to
remove department chairmen, and implemented procedures for the selection of a new
chairman was authorized under state law. Further, the collective bargaining agreement
provided for the procedure to transfer title to a new chairman of a unit. Therefore, the
court concluded that the statutory authority conferred upon the Board of Regents as well
as the collective bargaining agreement giving the dean power to remove a departmental
chairperson, made the memorandum in question an official duty subject to absolute
privilege under the statute and therefore, he was immune from prosecution for libel for a
publication made in proper discharge of an official duty.
It is interesting to compare this case with that of Reiser v. State Board of Regents
of Higher Education (1981). In both cases the petitioner lost the chairmanship of a
department: Reiser that of Home Economics and Small that of English. Also, both lost
compensation. However, Reiser’s action was for the restoration of her salary while
Small’s was for damages for libel. It would appear that an action by Small for continuance
o f his stipend of $900 per academic year and $150 per summer session would have been
accepted by the court with the same outcome as that enjoyed by Dr. Reiser in her suit.
However, having chosen to sue for damages Small was unable to prevail in his action.
Another aspect of the cases which presented itself was that of the status of the faculty at
each institution. Faculty at Reiser’s campus, Montana State University, did not have a
collective bargaining agreement as did the professional employees at Eastern Montana
College. And, as noted by the court, the bargaining agreement contained a grievance and
arbitration procedure which Small could have availed himself of but which was unavailable
to professors at Montana State University.
State Employees
Rippey v. Board of Trustees of Flathead Valiev Community College (1984)
involved an instructor at the community college whose employment was terminated at the
end of the 1982-83 academic year as part of a retrenchment plan. He requested payment
for the unused sick leave he had accumulated. The college refused claiming he was a
school teacher under Montana law and, as such, was exempted from the state’s sick leave
plan. The applicable statutes which provided for the entitlement to sick leave set forth the
entitlement of employees to compensation for accumulated sick leave and defined state
employees to exclude schoolteachers for this purpose.
Under Montana statutes the community college legal status was a hybrid. It was
neither a high school nor an admitted part of the University System; however, it was
answerable to the Board of Regents. The legislature had put community colleges under
the supervision of the Board of Regents; the course of instruction, tuition and fees had to
be approved by the Board of Regents; part of the funding came from the state general
appropriations; and the operating budget had to be submitted to the Board of Regents for
approval. The court considered all of these provisions as indicative that community
college staff members were not in a strict legal sense schoolteachers since they were
ultimately answerable to the Board of Regents. The court ruled that the meaning of
schoolteachers did not encompass postsecondary education faculty, including a
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community college faculty member and, therefore, community college educational staff
members were state employees for purposes of entitlement to payment for accumulated
sick leave.
Classification was the issue which confronted the court in Walch v. University of
Montana (1986). Richard Walch was hired in May 1978, as a Maintenance
Superintendent V, Grade 16, by the University of Montana.
In January 1982, the
university reorganized the Physical Plant and his position was split into two separate
positions. As a result, W alch’s classification was changed to Maintenance Superintendent
IV, Grade 15. However, his salary remained exactly the same because the university had
been granted a pay plan exception which allowed it to use a formula to maintain a
differential between the craft salaries and the salaries of the management staff in the
Physical Plant. Walch appealed his reclassification to the Board of Personnel Appeals.
After a hearing the board ordered that W alch’s classification be changed to
Maintenance Services Manager I, grade 16, but that he continue to be paid in accordance
with the formula designed for the management staff in the University of Montana’s
Physical Plant
The university continued to pay Walch under the formula which it had been paying
him before the order of the board. In March 1984, Walch requested an interpretation of
the order from the board in which he contended that the order required the university to
pay him in accordance with the pay matrix for state employees under the Grade 16 level,
rather than the formula set up for the management staff of the university. The Board
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determined that it meant for him to be paid under the pay plan exception formula, not in
accordance with the pay matrix for state employees.. Walch then brought his action in
court.
The court stated that the language of the order, although somewhat ambiguous,
indicated that the university should pay Walch in accordance with the pay plan exception
formula designed for the management staff. In answer to W alch’s contention that the
order required adjustments in his pay the court continued that what the order required
were adjustments in his classification title and pay grade level. The court referenced the
order where it was stated that Walch could be aggrieved by a reclassification of his
position even though his pay was not decreased. It went on to state that classification and
grade level assignment were major components of the classification system and changes in
these components, even if they did not result in a change in salary, constituted potential
bases for appeal. And, there were no guarantees of permanence for either the pay plan .
exception or the formula by which Walch’s pay was calculated. Should either of these
variables change, W alch’s classification title and grade level would resume being of
primary importance in the determination of his salary.
The terms of a professor’s contract were at issue in Julian v. Montana State
University (1987). Gordon Julian was a Professor of Chemistry at M ontana State
University when he entered into an agreement dated August 9,1984, with the university
concerning his early retirement. The agreement provided him summer appointment for the
three years, preceding his retirement on June 30,1987; appointed him chairman of the
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search committee to fill his vacancy; and assured him, subject to funding and need, that he
would be hired on a “one-third, temporary” basis after his retirement.
Julian was given summer appointments for 1984 and 1985 and was paid. He
received his appointment for the summer of 1986 and in July 1986, he was requested to
write a draft resignation letter as required by university policy. The draft was substantially
different than the agreement of August 1984, and he was asked to resubmit a letter that
would better reflect the terms of the August 1984 agreement. In reply, Julian requested
clarification of the university policy and was advised that he was not guaranteed postretirement employment, the Chemistry Department had been hiring temporary instructors
every year and the department would make every effort to see that he had at least three
years of part-time, post-retirement employment.
During this period, the university was concerned that if it paid Julian for July 1986,
it would be considered as accepting the terms of the draft letter sent by him so it stopped
payment of his July pay. Julian made no effort to meet or otherwise contact the university
and instead filed his lawsuit alleging violation of the Montana Wage Protection Act.
The court dismissed his claim ruling that the summer appointments were intended
by both parties to be consideration in support of Julian’s promise to retire early. The head
of the Chemistry Department testified that the university did not expect any services from
him outside those normally required of a tenured professor, nor was he given any. All that
was expected of him was his retirement.
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The provisions of the Wage Protection Act were not applicable because no labor
was performed by Julian. His summer appointments were not ordinary contracts for
services within the meaning of the act but were the consideration supporting the
retirement contract and could not be focused upon to the exclusion of the rest of the
contract.
Julian contended that the university breached the contract when they did not pay
him for his 1986 summer appointment and, because their actions touched the fundamental
purpose of the contract, they had committed a material breach. The court ruled that the
facts showed that Julian returned a resignation letter containing terms substantially
different from those in the 1984 agreement and the university then requested a letter that
better reflected the August 1984 language and put a hold on Julian’s third contract
installment, and that the university was justified in withholding Julian’s pay until they
could be assured he would comply with the 1984 agreement.
Another contract dispute came before the court in Snerrv v. Montana State
University (1989). Ray Sperry was employed at Montana State University from 1965
through March 31,1986, retiring as Director of Continuing Education. When he began
working the terms of his employment were governed by a written contract known as the
“M ontana 12 Contract” which allowed employees to take an eighth quarter leave with pay
for research, travel or any other reason approved by the Board of Regents. Employees
were required to work seven quarters before eligibility for eighth quarter leave accrued
and they were also allowed to accumulate two quarters, a total of six months.
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In 1967, the Board of Regents ordered the university to terminate the M ontana 12
Contract and convert to a one-year contract and Sperry’s contract was so converted. His
annual salary was increased by $1000, which constituted a thirteen percent increase in pay
and he signed an agreement accepting the change of contracts stating that all accumulated
eighth quarter leave had been taken, waiving his claim to any future eighth quarter leave.
From 1967 until his retirement in 1986, Sperry signed nineteen annual contracts
with the university, none of which mentioned any conversion compensation due which
would have arisen from the replacement of the Montana 12 Contracts with the annual
contracts as compensation for additional time worked without leave. In 1983, he wrote a
letter to Dr. Malone, Dean of the College of Graduate Studies, to discuss early retirement
and submitting a schedule requesting a salary adjustment for his last three years. The
university rejected his offer: he submitted another request and schedule stating that, if a
satisfactory agreement was reached, he would offer a statement agreeing not to pursue a
past wage grievance.
After an agreement was reached, Sperry wrote a formal resignation letter on
February 9,1984, to be effective as of March 31,1986. One year after the agreement on
the terms of retirement, Sperry sought conversion compensation from the university in a
letter to Vice President Knapp contending that at the time of the 1967 conversion, he was
offered a twenty-three percent salary increase, received a thirteen percent increase, and ten
percent was still due and owing as conversion compensation.
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Making short shift of his contention the court ruled that Sperry's signing of
nineteen, one-year contracts and cashing paychecks over the past nineteen years without
complaint of no conversion compensation, in combination with his acceptance of the
retirement agreement and his promise not to pursue a past wage grievance constituted a
complete waiver and release.
Speny contended that his direct supervisor indicated his increase in pay did not .
include the conversion compensation, but promised he would receive the additional salary
increase at a later date. Montana State University contended that Sperry received a
thirteen percent increase, which included his conversion compensation, and that there was
no promise by anyone to pay him further increases. The only person, other than Sperry,
who would have known of the alleged oral contract was his direct supervisor, Robert
McCall, who died in 1971. Sperry did not bring the compensation issue to the attention of
anyone at the University until his 1985 letter to Dr. Malone, long after McCall’s death
and after he had completed the retirement agreement Applying the equitable doctrine of
laches, which exists when there has been an unexplainable delay of such duration or
character as to render the enforcement of an asserted right inequitable, the court agreed
with the university that Sperry’s claim was barred.
Immunity to Suit
Stansburv v. Lin (1992) involved a slander action against a professor by a student.
In March 1990, Fred Stahsbury appeared as a student for the first day of a sociology class
taught by Professor Ruey Lih-Lin at Eastern Montana College. Stansbury alleged that Lin
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demanded he leave the classroom and that, upon his departure from the classroom, Lin
slandered him in a thirty-minute tirade to the remaining students in die class.
In January 1991, Stansbury’s attorney, on behalf of Stansbury, signed a settiement
agreement in which Stansbury released Eastern Montana College and its officers,
employees and agents from any liability for any alleged slander of Stansbury by Professor
Lin which contained the following sentence:
b. Nothing herein precludes Fred Stansbury from pursing [sic] legal
recourse against Professor Ruey Lin-Lin for actions of his outside the course and
scope of employment authority of Eastern Montana College or the Montana
University System.
Following the execution of the settiement agreement, and the receipt of the
settiement provided in the agreement, Stansbury filed a slander complaint against
Professor Lin . In defense Lin argued that since Stansbury had settled the slander action
with the college, he was statutorily barred by Montana law from suing Lin as an
individual. Lin argued further that he was individually immune from suit and he also
submitted an affidavit of the chief legal counsel to the Commissioner of Higher Education,
which acknowledged that under the authority of law barring suit against Lin as an
individual, Lin was acting within the scope and duty of his employment at the time of the
alleged slander. Stansbury contended that Lin was acting outside the course and scope of
his employment at the time of the alleged slander and that the state had previously
acknowledged that fact.
The court discussed the status of Eastern Montana College and determined it was
a college run by the state of Montana and, therefore, was a governmental entity as defined
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in the Montana statutes. It then considered Section 5 of the statute covering
governmental immunization, defense, and indemnification of employees which stated:
Recoveiy against a governmental entity under the provisions of parts I
through 3 of this chapter constitutes a complete bar to any action or recovery of
damages by the claimant, by reason of the same subject matter, against the
employee whose negligence or wrongful act, error, or omission or other actionable
conduct gave rise to the claim. In any such action against a governmental entity,
the employee whose conduct gave rise to the suit is immune from liability by
reasons of the same subject matter if the governmental entity acknowledges or is
bound by a judicial determination that the conduct upon which the claim is
brought arises out of the course and scope of the employee’s employment, unless
the claim constitutes an exclusion provided in (b) through (d) of subsection (6).
The court concluded that Stansbury had already obtained recovery, in the form of a
settlement from Eastern Montana College, for the same subject matter as his suit against
Lin and, therefore, the statute was a complete bar to his present lawsuit.
Stansbury’s argument that the provision in the settlement agreement affirming his
right to sue Lin personally was interpreted by the court as only precluding the settlement
agreement from cutting off Stansbury’s right to sue Lin and did not cancel the statutory
bar to this action.
As to the question of Lin’s actions being within the course and scope of his
employment, the court stated that it was immaterial because the second sentence of
Section 5, quoted above, applied. This action, which was filed after Stansbury settled with
Eastern Montana College, was not then and never has been an action against a
governmental entity and therefore the second sentence did not apply.
Justice Trieweiler dissented. He stated the evidence showed that Lin, after
ordering Stansbmy to leave the classroom, had referred to him as stupid and lazy.
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Stansbury also filed an affidavit stating that Lin had told the rest of the students in the
class that he was ignorant, obnoxious,, incapable of learning, and no good as a person or a
student.
The opinion continued that the court had previously held that where intentional
torts were not committed for the benefit of the employer, they were outside the course of
employment as a matter of law and the employer could not be held vicariously liable for
the consequences of such an act. In this case, the defamatory conduct of Lin was outside
the course of his employment as a matter of law. Therefore, the court, ignoring all rules
of statutory construction, had simply concluded that, based on the statute, recovery could
not be had against an employee of the State based on the same subject matter for which
recovery was had against the State.
Good Faith and Fair Dealing
Farris v. Hutchinson (1992) was the only case which involved the Commissioner of
Higher Education. In April 1989, Carol Farris was hired as a gender equity coordinator
by the Commissioner of Higher Education for a federally mandated affirmative action
program for the vocational technical education system in Montana. Throughout the
course of her employment she signed “three professional employment contracts” prepared
by the Montana University System, each lasting one year and providing for non-renewal
with adequate notice. The last contract was effective between July 1 , 1990, and June 30,
1991, and on February 5,1991, the commissioner notified Farris that her contract would
not be renewed. This suit followed.
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Farris contended that, if she could show objective manifestations of job security
beyond the term contract, she could maintain a breach of the implied covenant of good
faith and fair dealing. She argued that prior to being hired she was informed that the
commissioner viewed her position as a permanent position and that the signing of the
yearly “term” contracts was merely a formality. However, the statutes on contracts
containing the Parol Evidence Rule stated: “The execution of a contract in writing,
whether the law requires it to be written or not, supersedes all the oral negotiations or
stipulations concerning its matter which preceded or accompanied the execution of the
instrument.”
In this case the consideration of oral negotiations between the commissioner and
Fan is prior to the signing of the contract was barred by the Parol Evidence Rule. The
term contracts embodied the legal agreement between Farris and the commissioner. She
signed three term contracts each for one year and was aware that upon adequate notice
the contracts could be non-renewed.
Farris also contended that the personnel policies and regulations allowed the
commissioner to deprive her of the remedies available under the Wrongful Discharge From
Employment Act because the regulations and notice requirements allowed the
commissioner to circumvent the just cause requirement under the act. The act provided
that a discharge was wrongful only if it was not for good cause and the employer violated
the express provisions of its own written personnel policy.
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The court disposed of this argument by stating that the act itself excluded from its
provision the discharge of an employee covered under certain written agreements,
including an employee covered by a written collective bargaining agreement or a written
contract of employment for a specific term. Since Farris’s contract was a written contract
for a specific term as contemplated under the act, the act was not applicable.
Farris also argued that the commissioner, by adopting regulations which allowed
him to hire employees under specific term contracts, could escape the just cause
requirements imposed by the act and terminate an employee by simply not entering into a
new contract. The court went on to state that nothing in the law forbid the parties in this
case from entering into a contract where the contract was exempted from the act and that
'
I
it had done so in Leland v. Hevwood (1982) above.
As in the Stansburv v. Lin (1993) case, there was a strong dissent, this one by
Justice Hunt with Justice Trieweiler concurring. He felt the court’s ruling would allow an
employer to make significant oral representations to an employee concerning the terms of
the employment, induce the employee to sign a written contract with provisions contrary
to the oral representations on the basis that the written contract was only a formality, and
then completely avoid all liability for the oral misrepresentations which induced the
employee to sign the written contract in the first place.
He set forth an exception to the Parol Evidence Rule which stated that other
evidence of the circumstances under which the agreement was made or to which it related,
or other evidence to explain fraud, was not excluded. Whatever the situation in the
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present case, there were allegations that false representations had been made which could
only be proved by evidence extrinsic to the contract and, therefore, such evidence should
have been allowed.
Lastly, the Commissioner had contented that allowing Farris the opportunity to
present evidence that oral representations were made which were contrary to the written
contract would be nothing short of a revolution in Montana contract law. Justice Hunt
stated that to exclude all extrinsic oral representations in these situations on the ground
that allowing such evidence would undermine the sanctity and security of written contracts
was both draconian in nature and altogether unnecessary. He felt that a decision which
protected both employers and the sanctity of written contracts, while still allowing
employees some opportunity to seek redress, could have been fashioned in this case and
should have been sought by the majority.
Teaching and Tenure
Tallev v. Flathead Valiev Community College (1993) was the first of two cases
involving a series of term contracts signed between Talley, a part-time instructor, and
Flathead Valley Community College, beginning in September of 1982 and continuing
throughout the winter term of 1989. During the winter of 1989, the community college
canceled Talley’s Religious Studies class and reinstated it after objections were raised by
Talley. Subsequently, his classes for the spring term were listed but again canceled. His
classes were cut again during the summer and fall terms and he was not rehired by the
community college.
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Talley filed a complaint alleging that he was not rehired because he had spoken out
concerning polices at the community college and in retaliation for union activity. The
community college claimed that he was not rehired because of inadequate enrollment.
Talley argued that according to Montana statute he had acquired tenure. According to
him, changes in the law governing community colleges did not preclude the tenure statute
from applying to instructors at Flathead Valley Community College and the community
college’s definition of teacher was incorrect. The community college argued that the
tenure statues were applicable to teachers in elementary and high school districts, but not
to part-time instructors at a community college and further that Montana had already
defined “school teacher” as excluding community college instructors. Lastly, the college
argued that the use of teacher in the tenure statue also required that a person be certified
to teach by the Department of Public Instruction and that such was not the case for
instructor at the college.
The court declared that this was a case of first impression in Montana as it had not
previously interpreted the teacher tenure statute which provided:
Whenever a teacher has been elected by the offer and acceptance of a
contract for the fourth consecutive year of employment by a district in a position
requiring teacher certification. . . the teacher is considered to be reelected from
year to year thereafter as a tenure teacher at the same salary and in the same or a
comparable position of employment as that provided by the last executed contract
with the teacher unless the trustees resolve by majority vote of their membership to
terminate the services of the teacher. . . .
The statute also provided:
‘Teacher’ means any person, except a district superintendent, who holds a
valid Montana teacher certificate that has been issued by the superintendent of
Ill
public instruction. . . and who is employed by the district as a member of its
instructional, supervisory, or administrative staff.
The court noted that while it was true that the community colleges of the State
were once under the authority of the Office of Public Instruction and were-referred to as a
School District, they have been referred to as Community College District since 1979.
And, in the Community College District, teaching faculty were not required to have
teaching certificates issued by the Office of Pubic Instruction, although other requirements
existed for employment as an instructor. It went on that the 1979 Legislature attempted
to clarify the statues governing community colleges by combining the statutory guidelines
concerning the community colleges into Chapter 15 of Title .20 “Education” and provided:
Unless specifically identified in any other sections of the school laws
•prescribed in this title, community college districts are governed by the provision
of this chapter. Should there be a conflict between other requirements of this title
and the provisions of this chapter regulating community college districts, the
' provisions of this chapter shall govern.
The court concluded that the language of this chapter clearly indicated that unless
a statute in Title 20 “Education”, not in Chapter 15, specifically noted that it applied to
community colleges, it did not apply to community colleges. The tenure statute was in
Chapter 4 of Title 20 and did not specifically mention community colleges, and therefore it
did not, as argued by Flathead Valley Community College, apply to them.
The clear meaning of the teacher tenure statute was that it applied to all teachers
who have been certified to teach by the Superintendent of Public Education and who
taught in school districts under the authority of the Office of Public Instruction.
Instructors at a community college were not required to have certificates from the
Superintendent and did not teach in school districts under the authority of the Office of
Public Instruction, and were not teachers as that term was defined by the legislature.
The court referred to its decision in Rippev v. Flathead Valiev Community College
(1984) above, where it held that the ordinary meaning of the word teacher did not
encompass higher education faculty, including a community college faculty member.
While the Rippey case dealt with sick leave compensation for faculty members at Flathead
Valley Community College the decision interpreted the word teacher as it was used in the
current Title 20 definition. Both Rippev and the plain wording of the current statute
precluded any instructor at a community college in Montana from relying on the tenure
provisions. Further, trustees of community colleges have been given power by the
legislature to establish the conditions of employment of their staff and instructors pursuant
to law and if the community college chose to have tenured faculty, it could establish the
conditions under which that tenure was applied.
The court continued that community colleges were unique centers for learning;
they were neither high schools, nor were they part of the University System. Similarly,
instructors teaching at these centers were also unique. Montana law specifically
designated that community college districts were under the control of the board of regents
and that community college trustees had the power to set conditions of employment for
their faculties.
Talley argued that he was entitled to a reasonable expectation of the opportunity
for continuing employment and in reply the community college contended that every term
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contract signed by Talley contained the phrase: “ . . . acceptance of this contract confers
no right on the part-time faculty member to tenure,, credit toward tenure, or any other
permanent faculty status.” In reply, Talley argued that his 1982 contract contained this
wording but also another sentence: “but may be renewed upon the same terms by mutual
agreement, made in writing between the parties.” The court stated that it considered a
similar argument in Farris v. Hutchinson (1992) above, when it ruled that an agreement
made in writing could not be altered except by another writing or by an executed oral
agreement and that no obligation could be implied which would result in the obliteration
of a right expressly given under a written contract. Talley’s contract was clear and no
obligation could be inferred which would indicate an alteration of that agreement.
Talley argued that he had a property right in his position as a part-time instructor
at the college. The court recognized that a property interest in one’s position must be
created by existing rules and regulation, state laws, or understandings between employee
and employer. Therefore, Talley’s contract specifically precluded any property right
because it was clear and unambiguous on its face and created no expectations of
continuing employment with the community college.
Talley argued that the community college had acted in violation of the covenant
of good faith and fair dealing by not hiring him back. The court answered that the
obligation of good faith and fair dealing was measured by the justifiable expectations of
the parties. Despite Talley’s argument that he had a reasonable expectation of continuing
employment the existence of the no-tenure phrase in his contracts was an undisputed
material fact. Theiefore, given the plain wording of his contracts, such an expectation
was not reasonable, nor was it justifiable.
Under the facts of the case Talley had no property interest in his position because
his contract clearly prohibited it and due process under the Montana or United States
Constitution was not an issue. Further, all contracts with the community college were
successfully completed; thus, tortuous interference with a contract was not an appropriate
claim. Nor did the record contain evidence that other similarly situated individuals were
treated any differently than Talley in his position as a part-time instructor, precluding an
equal protection argument. The Privileges and Immunity clause of Article 4 of the United
States Constitution prevented discrimination by states against non-residents; the Privilege
and Immunities Clause of the Fourteenth Amendment protects attributes of United States
citizenship; there was no privileges and immunities clause in the Fifth Amendment; and
therefore, any privileges and immunities argument was inappropriate. The court
concluded the only constitutional claim which had merit under Talley’s pleadings was the
claim of denial of free speech according to the First Amendment to the United States
Constitution and the case was returned to the District Court for jury trial on this sole
issue.
Grievances
The court was presented with an arbitration issue in community colleges in Schaal
v. Hathead Valley Community College (1995). Robert C. Schaal was hired by the college
under a one-year employment contract in June of 1989. He was similarly employed the
following year but without a formal contract. He was given a one-year formal
employment contract for the 1991-92 school year which contained a provision
incorporating procedures and adopted policies of Flathead Valley Community College into
the contract and did not contain any provisions for renewal upon expiration.
In June of 1992, Schaal was notified by President Fryett of the community college
that he would recommend to the community college’s board of trustees that they not
renew SchaaVs contracts for the 1992-93 academic year. The board of trustees, at its
June, 1992, meeting, voted as President Fryett recommended.
Schaal alleged that he submitted a grievance to the community college in the form
of a letter to President Fryett in compliance with the community college’s policy for
arbitration of grievances. He further alleged that his letter was an appropriate submission
of his grievance because the policy provided that a grievant could write his own grievance.
He also argued that because President Fryett did not respond in compliance with the
policy, he was denied his right under contract to have his grievance arbitrated.
The community college Contended that Schaal had no right under the contract to
have his grievance arbitrated because he did not use the grievance form mandated by the
Policy. In addition he did not pursue his grievance to the next step of the grievance
procedure and it pointed out that Schaal did not file a request seeking review of the
President’s decision by the Board Personnel Committee. Therefore, the community
college concluded the grievance was assumed resolved in accordance with the its policies
and there was no obligation to arbitrate.
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The record reflected that Schaal did not utilize the grievance form required by
community college policy when he submitted his letter of grievance to President Fiyett
and President FiyetFs response to SchaaTs letter of grievance making it clear that he
would not suggest that Schaal be reinstated. If Schaal did not view his grievance as
resolved as this point, he should have sought review by the members of the Board
Personnel Committee in accordance with the policy. Therefore, the community college
had no obligation to arbitrate the nonrenewal of SchaaTs contract.
Schall claimed that the community college breached its duty of good faith and fair
dealing. He contented that the community college was under the supervision of the board
of regents and that the board of regents policy manual provided that employees employed
for three years must be given six months written notice of intent not to renew their
contracts. He argued that the community college failed to follow this policy when it gave
him only sixteen days notice that his contract would not be renewed. Additionally, Schaal
claimed that he was a permanent employee according to the community college’s policy
which provided probationary employees, those employed less than six months, could be
discharged without cause. He argued that because he had been employed for three years
he was a permanent employee with a reasonable expectation of continued employment.
The community college contended that Schaal had never been a probationary
employee nor a permanent employee because he was a contract employee and his contract
had no renewal provisions. It also argued that Schaal had no reasonable expectation of
employment beyond the term of his contract and the notice requirement of the board of
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regents policy did not apply in Schaal's case because the board’s policies applied only to
the Montana University System and Flathead Valley Community College was not a part of
that system.
The court discussed Tally v. Flathead Valiev Community College (1993) above,
wherein it stated that the nature and extent of the obligation of good faith and fair dealing
was measured by the justifiable expectations of the parties. Using this rationale, the
community college did not violate policy or breach Schaal's employment contract when it
determined that his contract would not be renewed. The nature and extend of the
obligation of good faith and fair dealing was measured by the justifiable expectation of the
parties. Since there was no basis for a reasonable expectation of continued employment
beyond the term of SchaaTs contract, the community college did not violate the covenant
of good faith and fair dealing.
Schaal claimed he had a property interest in his employment based on the
community college’s personnel policies, the board of regents policy providing six months
notice of nonrenewal, and the community college’s policy regarding probationary versus
permanent employees and that the community college violated his right to due process
when it denied him the opportunity to properly respond prior to his termination.
The community college replied that SchaaTs right to due process was not violated
because he did not have a property interest in his employment and the court concluded
that there was no evidence of a policy which gave Schaal a right of employment after the
expiration of his employment contract. As a result, he did not have a property right in his
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employment and the college did not deprive him of property when it determined his
employment contract would not be renewed.
Constitutional Rights
The last case involving faculty and staff issues was Talley v. Flathead Valiev
Community College (1995). The case involved the same parties and the same facts that
were presented in Talley v. Flathead Valiev Community College (1993) above. The sole
issue was Talley’s claim that the community college conditioned his continued
employment at the community college upon the abandonment of his position that he had a
right to continued employment, and, in so doing, violated his right to free speech.
The First Amendment protected speech of public employees upon matters of
public concern and, as expressed by the United States Supreme Court in Connick v. Mvers
(1983), except in the “most unusual circumstances”, it did not provide immunity for
speech concerning matters only of personal interest to the public em ployee. Although
“most unusual circumstances” were not defined Talley argued that such circumstances
were present here. He asserted that the elimination of his classes at the community college
was a matter of public concern; that he spoke out publicly as well as privately about it; and
that after his last contract with the college expired, he was an ordinary public citizen and
his comments about the college were no longer subject to the threshold inquiry from
Connick.
In the present case the record did not establish that the community college’s failure
to rehire Talley was a matter of public debate or interest in the community at large. The
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record, however, did establish that Talley’s primary motivation for his statements was his
desire for more teaching contracts for himself. The court concluded that Talley had not
demonstrated most unusual circumstances justifying an exception from the general rule set
forth in Connick and that Talley had not presented a claim of violation of his free speech
because his statements did not address a public interest or concern.
Summary
During the twenty-five year period following the adoption of the Montana
Constitution of 1972 the court has been presented a myriad of issues for its consideration
and determination. While the majority of the cases dealt with faculty and their specific
issues, there were issues brought forth by members of the staffs of the various institutions,
including the community colleges.
Among the issues which it faced in the staff area were tenure for non-teachers,
wrongful discharge, classification, good faith and fair dealing, and contracts. Faculty
issues included the definition of teacher, retirement, taxation, tenure provisions, right to
tenure, constitutional rights, constitutional protections, sick leave, contracts, immunity
from suit, due process, grievances, and property interest.
And, while the cases arose from institutions located throughout the state it is
interesting to note two items: (I) within the University System there were no cases arising
at the Western Montana College and the Northern College campuses, and (2) the only
community college which was involved in cases presented to the court was Flathead
Valley Community College.
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O f the ten cases involving faculty, both within the University System and the
community colleges, seventy percent included issues of tenure. The cases involving
faculty, all arose on the campuses of Eastern Montana College, Flathead Valley
Community College, or Montana State University.
It must also be noted that the court, in deciding the cases, placed a great emphasis
on its past decisions and did not overrule any of them. This is particularly interesting in
light of the fact that the University System was undergoing reorganization, the board of
regents had just been created, and the community college system was being removed from
high school district control. Additionally, these institutions were undergoing change, both
within and without, as the result of new laws enacted by the legislature, and the new rules,
regulations, and policies adopted as a result of the reorganization and new laws.
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CHAPTER 4
STUDENTS
Introduction
Since Montana’s admission to the Union in November 1889, the courts have been
,
/
called upon to render decisions involving students on only eight occasions. The first case
I
did not.even come before the court until 1928, and it would be forty-three years before the
court would have the opportunity to rule again on a controversy involving students. And,
it was in the area of postsecondary education that the only disputes which resulted in legal
actions were presented to federal courts for adjudication.
Prevalent throughout the decisions entered by the courts in the controversies
which were presented for their consideration was the theory of “academic absentionism.”
This theory, discussed in Chapter I , was used by the court to allow it to defer its judgment
to that of the academician who was thought to be more qualified to judge the
qualifications of students, their substantive rights, and their right to information.
The adoption of the Montana Constitution of 1972 was responsible for the
adoption of numerous changes within postsecondary education, affecting students, faculty
and staff, and control and governance of the system. This chapter will therefore look at
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student issues during two periods: those that occurred during the Constitution of 1889,
and those that have occurred since the adoption of the Constitution of 1972.
Montana Constitution of 1889
Arbitrary and Capricious
The court was first presented a case involving student issues in State v. Clapp
(1928). In the fall of 1924 the plaintiff, Janet T. Ingersoll, a married woman who was
twenty years old, was enrolled as a student at the university in Missoula. On January 19,
1927, President Charles H. Clapp, acting with Dean of Women Harriet R. Sedman and
Dean of Men Richard H. Jesse, as the deans’ council, suspended her and struck her name
from the roll of students. She then requested the president to reinstate her, or grant her a
hearing, which he denied. Her petition to the Board of Education was also denied and on
April 18,1927, she filed her action.
While attending the university Ingersoll and her husband, who was also a student
at the university, lived in a house at which it was charged they held unchaperoned parties
attended by students during which intoxicating liquor was served. It was further alleged
that such activity was regarded as not in conformity with the usual standards of society at
the university, or with the duties of law-abiding citizens. Ingersoll was interrogated by the
Dean of W omen about the allegations and she and her husband were called before the
deans’ council of the university and interrogated regarding the serving of liquor at their
home and the conduct of student parties at their home. Following these meetings it was
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the unanimous judgment of the deans’ council that the general good and welfare of the
university would be promoted by their suspension.
Both the plaintiff and her husband admitted he used intoxicating liquor, and served
liquor to guests, including students who visited their home. The testimony also brought
out that the plaintiff did not drink and that she refused to provide the names of students
who frequented and drank at their house.
A t a meeting of the deans’ council held on December 19,1926, at which the
plaintiff and her husband were present, they had the opportunity to make any statement
they desired, but they did not attempt to refute or deny any of the charges. During this
meeting a suggestion was also made that the plaintiffs husband had acquired the
reputation of being the campus bootlegger. However, following their suspension.
President Clapp testified he had subsequently ascertained this belief was not true.
Ingersoll maintained she was entitled to a formal hearing upon the charges against
her, to be confronted with the witnesses who gave information against her, with the
privilege of cross-examining them, and that she did not have the opportunity to call
witnesses in her own behalf.
The court set out what was meant by a hearing in a matter such as the present one.
It stated it did not mean a hearing like that which constituted the trial of a suit, or like the
examination of one who was charged with the commission of an offense against the law,
reasoning there was no power vested in the president of the university to compel
attendance, of witoesses or to force them to testify if they were in attendance. When
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Ingersoll was called before the deans’ council, informed of the charges made against her,
given an opportunity to deny the same, and make a statement in connection therewith, she
was accorded a sufficient hearing.
Expressing the holding of other jurisdictions concerning “academic abstention” the
court stated that courts would not interfere with the discretion of school officials in
matters which the law had conferred to their judgment, unless there was a clear abuse of
that discretion, or arbitrary or unlawful action. The court concluded the enforcement of
the disciplinary rules of the state university was committed to the officials thereof, and not
to the courts and upheld her suspension.
The other case presented to the court during this period was State v. Pantzer
(1971). James C. Bartlett applied to the University of Montana for admission to the
School of Law class beginning in 1971. His application was acknowledged by letter in
which he was advised that his transcript indicated he had not taken courses in financial
accounting and advanced English composition. He satisfied the English composition
requirement and offered to enroll at the University of Chicago in the spring quarter in a
graduate accounting course. By letter dated January 28, 1972, the School of Law stated
its willingness to accept the course if he completed it with a satisfactory grade.
Bartlett enrolled in the course and completed it earning a grade of D. At the
University of Chicago a D grade was sufficient to earn college credit; at the University of
Montana, in the School of Law a D was a passing grade for courses taken at the
University. In fact, in the School of Law, a degree would be granted if the student had
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completed ninety semester hours in law courses with a grade point average of 2.0 or a C
average.
At the time of his application, he received from the School of Law a publication
setting forth the provisions of the English requirement and the financial accounting
requirement which stated: “College credit in the principles of financial accounting also is
required for admission. Normally, two quarters or two semesters of accounting are
necessary to fulfill this requirement.”
On April 16, 1971, the School of Law advised Bartlett of his acceptance and again
referred him to the School of Law Bulletin for the accounting requirement. At no time, by
bulletin, letter, or otherwise, had the School of Law explicitly stated to Bartlett that his
accounting requirement was anything more than “college credit” earned by him, except
the reference in the letter of January 28,1971, to a “satisfactory grade.”
On July 20,1971, the School of Law advised Bartlett he would not be admitted on
the ground he had not completed the accounting requirement, specifically that the grade of
D was not a “satisfactory” grade. He appealed and his appeal was denied.
The accounting requirement was a new requirement for admission to the School of
Law; consequently, there were students in the school who were admitted without
completing the requirement. During the fall semester of 1971, the University of Montana
was offering an academic course “Accounting for Lawyers”, but it was restricted to
second year law students. Completion of this course would fulfill the accounting
requirement and there was not a written requirement that students achieve a grade of C or
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better. The School of Law advised Bartlett it would consider enrolling him in the
“Accounting for Lawyers” course for the accounting requirement; however,, it refused to
allow him to enroll in both the School of Law and the accounting course although second
year law students.were allowed to enroll in both. Additionally, the School of Law then
allowed students who were deficient in the English composition requirement to enroll in
an English course in the fall quarter and they were.given probationary enrollment in the
School of Law at the same time.
The court referred to State v. Clapp (1928) above, and reaffirmed its rule of
judicial nonintervention in school matters unless there was a clear abuse of discretion, or
arbitrary or unlawful action. And, while this case concerned admission, and Clapp dealt
with suspension, the court stated its intention to use the same standard of abuse of
discretion or arbitrary action.
The discretion to admit Bartlett hinged in this case strictly on the interpretation of
the words “satisfactory grade.” Nowhere in its catalog, by letter, or otherwise, did the
School of Law indicate what was meant by “satisfactory” grade, whether it was a credit
earning grade or a grade of C or better. While there was testimony that the common
terminology at the university that the grade of D was not deemed “satisfactory”, but rather
was “acceptable”, the court continued that if the significance was so important as to hinge
a decision on, the significance was important enough to warrant an explanation in some
form, either by letter, publication or some other medium of communication.
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Therefore, it reasoned that to cause a qualified student, whose entry into the
School of Law would not interfere with the educational process in any discernible fashion,
to lose one year and the opportunity for education on the technical, unpublished
distinction between the words “satisfactory” and “acceptable” as applied to a credit
earning grade from a recognized institution was an abuse of discretion. Accordingly, the
court looked beyond the rule of judicial nonin teiwention and ordered Bartlett admitted to
the School of Law.
Summary
During the eighty-three years that the Constitution of 1889 was in effect the court
was presented with only two cases involving student issues. Interestingly, both cases, one
dealing with suspension and the other with admission, were decided using the principle of
“academic absentsion.” This principle, which established the yielding of the court’s
discretion to that of academicians would become the basis for court decisions during the
following years.
Montana Constitution of 1972
Domicile
County of Blaine v. Moore (1977) presented the issue of the determination of the
domicile of college students. Edwin S. Moore and his wife, Marlene, in early 1969,
moved to the ranch of Marlene’s parents located at Lodgepole, Blaine County, Montana.
In 1972, they moved to Denver, Colorado, and in December 1972, they returned to her
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parent’s ranch where they resided until September 1973, when they moved to Havre in
Hill County where they both attended Northern Montana College and resided in married
student housing. They returned to the ranch on weekends and over Christmas vacations.
In April 1974, they moved out of married housing and transported all their personal
property back to the ranch. During the summer of 1974, Moore commuted from the
ranch to Northern Montana College.
In September 1974, Marlene was admitted to Community Hospital in Anaconda
where she gave birth to a baby girl. Complications required that she be readmitted and
then transferred to St. James Community Hospital in Butte. Their medical expenses were
approximately $30,000 and they were without funds to pay the medical bills. Therefore,
they filed an application for general assistance in Deer Lodge County, which determined
that Blaine County was their residence and to which the application was forwarded.
After addressing several of the issues raised by the parties, the court turned its
attention to the question of determining the Moore’s residence. The applicable statute
provided that financial responsibility rested in the county in which the claimant resided at
the end of a one year continuous residence in Montana. After a year’s residence in
Montana, subsequent to returning from Colorado, the Moores were residing at Havre, in
Hill County, attending Northern Montana College and living in the married couples
housing unit. However, a presumption arose that the county wherein a college or
university lies was not the resident county of the attendant students. Generally, students
travel from, the residences of then- parents, attending college only during the academic
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year, and returning to their parents’ residences on weekends, holidays and summer breaks.
For this reason, it was customary to look to the parent’s residence in order to determine
the residence of the student. Otherwise, the county in which the college lies would be
unduly burdened with providing for the social welfare of students.
The facts of the case did not fall within the guidelines of the presumption. The
Moores were not of the age often associated with college students. Furthermore, there
was an absence of the parental ties often associated with the student leaving his parents’
home to attend college. Therefore, the court had to make a determination as to the
county having the most, significant contacts with the Moores.
It continued that the Moores resided in Blaine County for nine months prior to
their attending Northern Montana College. During their stay in Hill County, they returned
to Blaine County on weekends and holidays to help Mrs. Moore’s parents with the ranch
work. Upon leaving Hill County, they returned to Blaine County, and resided on the
ranch while continuing to help with the work. Moore commuted to Northern Montana
College where he continued his course work during the summer of 1974. Further, M oore
testified that at all times he considered Lodgepole to be the site of his permanent
residence.
The court determined that Blaine County was the county having the most
significant contacts with the Moores and therefore it was financially responsible for their
medical bills and was considered to be the Moore’s residence.
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Readmission
The question of arbitrary treatment arose again in Johnson v. Sullivan (1977),
another case involving the University of Montana School of Law. Sandra S. Johnson
entered the School of Law in 1973. During her third semester she received an F in the
Constitutional Law course and D ’s in two other courses and, consequently, she was
deficient by eleven grade points at the end of the semester. She was excluded from the
School of Law under the applicable exclusionary rule which provided that students with a
deficiency of six or more grade points at the end of their third semester were not allowed
to continue their law studies. Her second petition for readmission subsequent to that
exclusion was granted by the School of Law faculty, and she returned the next academic
year. At the end of that year her academic performance was deficient by eight grade
points and was excluded again, this time for failure to have a cumulative grade point
average of 2.0 and a zero grade point deficiency, at the completion of the fourth semester.
She again petitioned for readmissibn and it was denied. She then brought this action.
The university computed a student’s cumulative grade point average by dividing
the number of grade points earned by the number of credits undertaken, with four grade
points assigned for each credit of A, three grade points for each credit of B, two grade
points for each credit of C, one grade point for each credit of D, and zero grade points for
each credit of F. Also, under the general university rule, the last grade received in a
repeated course replaced the prior grade.
■
.
f
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In the School of Law, however, a student’s cumulative grade point average was
computed on the basis of all courses for which a student had registered and received a
grade. If a grade of F was received in a School of Law course and the course was
repeated, both the initial F and the last grade received were included in the computation of
the student’s cumulative.grade point average.
Johnson received her failing grade in Constitutional Law, a course required for
graduation from the School of Law. Therefore, she was required to repeat the course, and
she received a passing grade. However, her cumulative grade point average remained
below the 2.0 required of law students at the end of their fourth semester.
She contended that the method of computing a student’s cumulative grade point
average violated due process and denied a fair and equal application of the academic
requirements for graduation. In effect, the question was whether it was unreasonable,
arbitrary, or capricious for the university to include both grades received for a repeated
course in its computation of a law student’s cumulative grade point average.
The court discussed the objective of the grading system which it stated was to
provide an accurate, easily understood measure of academic performance. And, as it
related to the School of Law’s exclusionary rule, a student’s grade point average was used
as an indication of his or her presumed fitness to continue the study of law. It also
discussed the state’s “diploma privilege” whereby graduates of the School of Law could
be admitted to practice on motion; they were not necessarily required to take and pass the
state’s bar examination. Graduation from the School of Law virtually guaranteed
admission to practice. The object of measuring performance and allowing or precluding a
law student’s continued study on the basis of that performance was to assure that
graduates of the School of Law were qualified to enter practice.
The university argued that its method of computing law students’ cumulative grade
point averages was reasonably related to the objectives of determining academic
competence and the probability of professional competence. Johnson asserted that she
had established competence in Constitutional Law by receiving a grade of C for the course
in her second attempt based on her interpretation of the effect of the School of Law’s
acceptance of her second petition for readmission following her first exclusion. She
argued that by granting that petition, the School of Law faculty implied that they found
the failing grade to be invalid.
The court found there was no dispute that Johnson was apprised of the rule
requiring the inclusion of the first grade received for a repeated course in the computation
of her cumulative grave point average and that there was no dispute that the university
applied this method in its computations of the cumulative grade point average of all
students in the School of Law. As such, she had neither arbitrary action on the part of the
university nor arbitrariness on the application of the rule in its measurement of her
academic performance and the state’s “diploma privilege” did not divest the university of
its discretion to set standards for the measurement of academic competence.
Johnson’s contention regarding the differing methods used to compute grade point
averages of law students and students in other disciplines was treated by the court through
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a discussion of the differences between law students and other university students.
Declaring that the classification was neither based on a suspect criterion such as race,
wealth, nationality, or alienage, nor affected by a fundamental right such as the right to
vote , the right of interstate travel, or the right to freedom of speech, the court applied the
rational basis test.
It continued that there were many practical differences between the School of Law
and other schools and departments of the university. Instruction methods and examination
procedures differed, as well as attendance policies and requirements for class preparation.
It was not unreasonable to classify students in this manner and the study of law was
substantively different from the study of English, or forestry, or pharmacy. There was no
classification of students within the School of Law with respect to the computation of
their cumulative grade point average; all law students who repeated a course had the first
grade received in that course included in the computation. Therefore, there was no denial
of equal protection.
Johnson did not challenge the exclusionary standard, which provided that law
students must have a 2.0 cumulative grade point average at the completion of their fourth
semester; rather, she asserted that she should have been readmitted despite her failure to
meet this standard. She did not argue that the School of Law faculty should be required
to either grant or deny all such petitions. She did not show or offer any proof that would
tend to show her petition was not given the same consideration that was given to the
petition of .other students similarly excluded. The court concluded that, absent any
)
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showing of discriminatoiy or arbitrary treatment by the faculty in their review of her
petition for readmission, it had to conclude her contention was groundless and her petition
was denied.
Implied Contract
The first case involving postsecondary education issues presented to a federal
court was Peretti v. State of Montana (1979), filed in the United States District Court for
the District of Montana. The State of Montana maintained five vocational education
centers, one of which was in Missoula. The centers were financed by state appropriations,
which could be supplemented by county levies. In Missoula, the Board of Trustees of
Missoula County High School provided the day-to-day administration of the center, but
the overall control of the budget and the curriculum was vested in the Board of Public
Education.
In the fall of 1976 the plaintiffs enrolled in the two-year aviation technology
program offered by the Missoula center which led to a private pilot’s license and
employment in the general aviation industry. In 1977, the legislature appropriated
$819,388 less than in 1975 for the vocational education centers which required
adjustments to be made in the programs offered, and the board eliminated the aviation
technology program.
The court discussed the relationship between a public postsecondary educational
institution and a student and presented the proposition that the relationship was
contractual in nature. The contract could be conceived of as one in which the student
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agreed to pay the fees, maintain a satisfactory level of achievement, and observe the
school’s rules and regulations. In return, the school agreed to allow the student to pursue
his course of studies and be granted a diploma upon the successful completion of the
course of study.
In this case a student enrolling would know he was required to dedicate six
consecutive quarters to the aviation technology course, that any time spent short of two
years would essentially be wasted, and the center would reasonably know that a student
enrolling and spending three quarters would expect an opportunity to complete the
remaining three quarters. Accordingly, there was an implied contract between the Board
of Education and the plaintiffs that, if the plaintiffs enrolled in the aviation technology
course, they would be given an opportunity to complete the training period of six quarters
and receive a diploma evidencing such completion.
Such a right, arising out of an implied contract, stated the court, was within the
Fourteenth Amendment’s protection of life and property and the state could not destroy
the right by an act of the legislature repealing the law which formed the basis of the right.
The state argued that the court could not entertain this action under the Eleventh
Amendment that barred actions by a citizen of a state against a state in the absence of a
waiver. The court discussed Article 2, Section 18, of the Montana Constitution of 1972,
amended in 1974, to read: “The state, counties, cities, town, and all other governmental
entities shall have no immunity from suit for injury to a person or property.” It concluded
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that the language of this section constituted a waiver of immunity by the state in the case
and held that the State of Montana was liable to each of the plaintiffs for damages.
Residence Revisited
The question of a student’s residence again arose in Michels v. Department of
Social and Rehabilitation Services of the State of Montana (1980). Melanie Michels was
bom in Great Falls and had lived her entire life there. In the spring of 1978 she left Great
Falls to attend Western Montana College in Dillon. While in school she returned to her
home nearly every weekend and considered Great Falls her permanent address. In the
summer of 1978 she found employment with the Gallatin National Forest and in August
1978, she was involved in a head-on automobile collision and seriously injured. She was
hospitalized for several weeks and incapacitated three months. She applied for county
medical assistance and was denied benefits and filed this suit. Among the issues the court
was called upon to decide was if she was a resident of Cascade County for the purposes of
county medical insurance.
Referring to its decision in County of Blaine v. Moore (1977) above, the court
noted that Michels was bom and raised in Cascade County, her parents and family lived in
Cascade County, she gave Cascade County as her permanent address, and intended to
reside there after she finished school. The fact that she accepted temporary summer
employment in Gallatin county did not change her place of residence. And, under the rule
established in County of Blaine v. Moore (1977) it was customary to look to the parents’
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residence in order to determine the residence of the student. Therefore, she was found to
be a resident of Cascade County for the purpose of county medical assistance.
•
Constitutional Law
The second, and only other postsecondary education case filed in federal court was
State of Montana v. Peretti (1981) which was argued before the United States Court of
Appeals for the Ninth Circuit. The State of Montana appealed from the judgment entered
by the United States District Court for the District of Montana in Peretti v. State of
M ontana (1979) above, wherein it was found to have violated the due process rights of
students at the Missoula Educational Center when it terminated the aviation technology
program in which they were enrolled without giving them a chance to finish their course of
study.
The basis of the appeal was that the Eleventh Amendment to the United States
Constitution explicitly withheld from United States courts jurisdiction over suits against a
state brought by citizens of another state or by citizens or subjects of another country.
Although the amendment did not expressly prohibit suits brought against a state by its
own citizens the United States Supreme Court had consistently held that an unconsenting
state is immune from suits brought in federal courts by her own citizens as well as by
citizens of another state. Therefore, in the absence of a waiver of Eleventh Amendment
immunity by Montana, district court jurisdiction over the case was foreclosed.
The district court found such a waiver in a provision of the Montana Constitution
of 1972 which stated that: “The state, counties, cities, towns, and all other local
138
governmental entities shall have no immunity from suit for injury to a person or
property ----- ” The appeals court continued that a state could waive suit in its own courts
without thereby waiving its Eleventh Amendment immunity from suit in federal courts
and, in this case, the waiver did not extend to suits in federal court because it found waiver
only where stated by the most express language or by such overwhelming implications
from the text that would leave no room for any other reasonable construction and the
language of the Montana Constitution did not meet that standard.
The appeals court also dismissed the district court’s alternate basis for its decision
that a Montana statute provided that the state shall be liable on its contracts to the same
extent as a private individual under like circumstances. It stated that the conclusion could
not be supported in the face of the jurisdictional provision in the same statutory section
which granted Montana state district courts exclusive jurisdiction over any claim or
dispute arising out of any express contract entered into by the State of Montana.
Therefore, because Montana did not consent to suit in federal court, the Eleventh
Amendment precluded district court jurisdiction over the suit.
Award of Degree
Bindrim v. University of Montana (1989) was the last case involving student issues
presented to the court. Donald Bindrim enrolled at the University of Montana in
September of 1984 to pursue a Bachelor of Arts degree in Education with an emphasis in
Music. He had previously attended East Texas State University and the University of
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Texas at Arlington. He attended three quarters plus two summer session courses and
performed secondary school practice teaching in the fall of 1985.
Bindrim raised two issues for the court’s consideration. First, he asserted that the
university contradicted its own catalog by requiring him to take the piano function
examination in order to pass Music 217, a course required for graduation. He argued that
the university catalog in effect at that time made no mention of the examination as a
requirement for passing the course. He did not take the examination and received an I
(incomplete) for the course. He did not take the examination within one year of receiving
the I, and under university academic rules the I automatically became an F.
Secondly, he asserted that university officials reneged on assurances that his
coursework from the Texas institutions would satisfy all of his education coursework
requirements. He contended that the School of Education told him he needed only to
fulfill student teaching requirements listed in the catalog but a letter sent by the school to
him in 1986 stated that university records indicated he needed to take additional
educational courses in order to graduate.
Bindrim ’s first claim was one of alleged breach of an implied contract with the
university. According to him, the contract provided that he would receive a degree if he
paid his tuition and satisfied the academic requirements found in the school’s catalog, as
modified by the assurances of the School of Education. The court ruled that he did not
fulfill his duties under the contract and, therefore, he was not entitled to a degree^ Under
the contract terms alleged by him, successful completion of specified courses and a
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specified number of student teaching hours were conditions precedent to receiving his
degree. Music 217 and Music 236 were among the courses so specified, and Bindrim
failed them both. He also failed to complete the student teaching requirement.
Additionally, the alleged contract also contained the following language found in
the catalog:
The right is reserved to change any of the rules and regulations of the
University at any time, including those relating to admission, instruction, and
graduation. The right to withdraw curricula and specific courses, alter course
content, change the calendar, and to impose or increase fees similarly is reserved.
All such changes are effective at such times as the proper authorities determine
and may apply not only to prospective students but to those who already are
enrolled in the University.
There was no showing that the university abused its discretion in setting the criteria
contained in the catalog or reserving the right to change those criteria.
The court dealt with Bindrim’s second claim of breach of good faith and fair
dealing by stating its previous ruling that the minimal requirement for a breach of the
covenant was arbitrary, capricious or unreasonable conduct that exceed the plaintiffs
justifiable expectation of reasonableness. Bindrim’s justifiable expectation of
reasonableness was that upon fulfillment of the academic requirements set by the
university and payment of all requisite fees, he would be awarded a Bachelor of Arts
degree in Education. But the facts that emerged from all of his claims were that he was
required to complete the requirements found in the university’s catalog as modified by the
assurances given by the School of Education and that he did not do so. Therefore, the
university did not breach its contract and there was no showing of an abuse of discretion
by the University that exceeded his justifiable expectation. Accordingly, he was not
entitled to a degree.
Summary
During this period the court continued its policy of refusing to substitute its
judgment for that of education officials, absent a showing that their judgment was
arbitrary, capricious, or unlawful. And, for the first time, the federal courts were called
upon to enter a decision involving a postsecondary education dispute in Montana.
Ironically, the decision entered in favor of the students in the federal district court was
reversed by the federal appeals court. In four of the six actions heard by the Montana
Supreme Court, two involved the residency of students, an issue which had not been
previously presented for adjudication. And, in the other two cases, involving the actions
of university administrators, the court ruled against the students in both cases thus
continuing its adherence to the principle of “academic abstention” that it had enunciated
sixty-one years earlier.
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SUMMARY, CONCLUSIONS, AND
RECOMMENDATIONS FOR FURTHER STUDY
Summary .
It has been 108 years since Montana was admitted to the Union. During this
period the Montana Supreme Court has been presented with cases involving
postsecondary education issues on 50 occasions and the federal courts for the District of
M ontana have been presented with two cases. The opinions issued in these cases have
generally dealt with issues in three areas: control and governance, faculty and staff, and
students. O f the 50 cases presented for a decision to the Montana Supreme Court, 24
involved issues of control and governance, 17 involved issues of faculty and staff, and six
involved student issues. Additionally, three of the cases involved joint issues of control
and governance and faculty and staff. The two cases in which the federal courts were
called upon to render a decision involved the same parties and issues, the only difference
being that the decision of the Federal District Court for the District of Montana was
appealed by the losing party to the Federal Circuit of Appeals for the Ninth Circuit for its
consideration and decision.
To summarize the findings, each research question is individually discussed in the
following section.
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W hat Guided the Courts
In the cases dealing with control and governance the Montana Supreme Court, in
addition to the Constitution of the United States, was guided in its deliberations by two
M ontana Constitutions, the first effective upon admission to statehood in 1889 and the
second upon passage by voters of the state in 1972. Additionally, the Court was guided
by common law principles passed from EngUsh law and prior decisions of the Montana
territorial court and federal courts.
One of the dominant principles which guided the Montana Supreme Court in its
deUberations was that of upholding the constitutionality of the state Constitution.
Speaking in State V; Rice (1906), the court declared that it was only with the greatest
hesitation that courts would hold inoperative and invalid a provision of the state
Constitution. And, in State ex rel Jones v. Erickson (1926), the court appUed this
principle to legislative enactments and initiative measures when it declared that the
constitutionahty of an act is prima facie presumed, and every meaning is in favor of
upholding it. The Court went on to state that one of its guiding principles was that where
two constructions are possible one of which will result in declaring an act constitutional
and the other unconstitutional the court will prefer the former.
In Mills v. Stewart (1926), the court stated that another principle under which it
operated was that the legislature’s determination that an appropriation was for a public
purpose belonged to the legislature, and the court would look favorably upon every
reasonable presumption in favor of a legislative decision. The court also stated that when
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a statute was attacked as being unconstitutional, the question was not whether it was
possible to do so but whether it was possible to uphold it.
In the cases presented to it dealing with faculty and staff the court, in addition to
the guiding principles enumerated above, set forth several other principles upon which it
based its opinions. In State ex rel Sullivan, v. State (1977), the court stated that the intent
o f the legislature cannot be determined from the wording of any particular section or
sentence, but rather must come from a consideration of the act as a whole. The court
further stated that it would not be bound by interpretations by administrative agencies.
On several occasions the court set out the provisions of due process that would be
required in order to be constitutionally sufficient under the federal and Montana Bill of
Rights. The court, in several of its decisions, announced what it considered to be good
faith and fair dealing between employees and employers.
In the earliest case dealing with students the Montana Supreme Court in State ex
rel Ingersoll v. Clapp et. al. (1928) stated that the doctrine of “academic abstention” was
the court’s policy in such actions and that the enforcement of the disciplinary rules of the
university is committed to the officials thereof, and not to the courts. Further, it stated
that the courts would not interfere with the discretion of school officials in matters which
the law had conferred to their judgment, unless there was a clear abuse of this discretion,
through arbitrary or unlawful action.
Forty-three years later, in State ex rel. Bartlett v Pantzer et al. (1971) the court,
acting in an admissions case, as opposed to a disciplinary action, stated that while it
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approved generally of judicial nonintervention in admissions cases, it would still look to
whether or not there had been a clear abuse of discretion or arbitrary action. Only six
years later the court was faced with a case from a student who was denied readmission
and it again stated that unless the action was arbitrary or capricious, it would not find it
unreasonable.
In the only Federal District Court case presented for a decision the judges’ opinion
was based on the relationship between the student and the postsecondary educational
institution being contractual in nature.
Aspects of Postsecondarv Education Affected
The earliest cases which were presented to the Montana Supreme Court for its
decision involved actions against state officers and boards directing them to release funds
or deciding that they had no control over funds for postsecondary education purposes.
The cases set state agencies, boards, elected officials, postsecondary education officials,
the legislature, and the executive branch against each other in a contest for control of
postsecondary education in Montana. During the period preceding the First World W ar
the court’s opinions generally enforced the authority of the postsecondary education
officials as opposed to the interests of the other parties.
The support for the independence of the education officials underwent a change of
direction following the First World War when the court ruled in State v. Brannon et al.
(1929) that the Board of Education, being an executive agency whose powers and duties
were prescribed and regulated by law, was subject to legislative control. This decision.
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affecting the control and governance, faculty, and student structures of the postsecondary
education system, which was to remain in effect until the passage of the Montana
Constitution of 1972, had profound effects. As a result of the decision the legislature’s
authority in postsecondary education to create positions and impose additional duties upon
university personnel was upheld.
During this same period the court ruled that the Board of Education, granted the
power to manage and control the business and finances of the state educational
institutions, had the power to do all things necessary in the exercise of its powers. Using
this authority the board was able to establish and collect from students building fees, and
such other fees necessary for the operation of postsecondary education. The court went
on to state that those upon whom the fees were to be levied and collected, the students,
were not required to be consulted, or allowed to vote, on the matter.
Several cases presented to the court were concerned with the relationship of the
Board of Education and postsecondary education faculty. In these cases the court ruled
that the regulations of the board were not only for its own governance but part of each
faculty members’ contract, thus affecting their rights to tenure and reinstatement.
Using the rationale of the cases the court went on to rule that the relationship of
the Board of Education and professors being that of employer and employee was it was
contractual in nature. This led the court to conclude that the Board of Education, having
X
the right to contract, was not exempt from suit and that the courts could enforce contracts
against the board.
147
In its only advisory opinion involving postsecondary education the court was asked
to render its opinion with respect to the trust and legacy funds established by the Montana
Constitution of 1889 for the University of Montana. This opinion determined the
conditions under which the fund could sell and trade securities and allowed for the transfer
of responsibility for investing the trust and legacy funds.
The Montana Constitution of 1972 created a Board of Regents to supervise
postsecondary education, a Board of Public Education to supervise the public school
system, and a state Board of Education, comprised of the first two boards, responsible for
long-range planning and coordination and evaluating policies and programs. The court,
presented with the opportunity to define the powers of the new boards, declared that the
Board of Regents language in the new constitution was much stronger and more
comprehensive than that of the old provision. Under the 1889 Constitution the Board of
Education’s powers were limited to those prescribed and regulated by law, a provision not
contained in the 1972 Constitution. Additionally, in the 1972 Constitution the Board of
Regents was given full power, responsibility, and authority to supervise, coordinate,
manage and control the Montana University System while under the 1889 Constitution the
Board of Education was given general control and supervision of the University System.
The effect of this language was to remove the general control of the University System
from the legislature while retaining its right to appropriate funds and their accountability.
Likewise, the court continued, the legislature could not affect indirectly through the means
of line item appropriations and conditions what it could not do directly. Also affected by
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this decision was the relationship of university personnel. Declaring that the Board of
Regents was the competent body for determining priorities in postsecondary education the
court went on to state that an important priority was the hiring and keeping of competent
personnel. And, within this area, control over college presidential salaries was not a minor
matter as it dictated university personnel policy, and therefore, the legislature’s attempt to
set salary increases for presidents of units of the university system and for the
Commissioner of Higher Education was unconstitutional.
The public’s constitutional and statutory right to know was determined to be
secondary to the right of privacy in the job evaluations of university presidents and closure
of the meeting at which their evaluations were discussed was necessary to protect their
privacy and uphold their expectations of privacy.
The court’s ruling in the Sullivan case had the effect of allowing credit for
out-of-state teaching service in a private university for retirement purposes. Prior to this
decision the Montana Teachers’ Retirement Board had ruled that only o'ut-of-state
teaching service in a public school could be credited for retirement purposes. The court’s
opinion had the effect of saying that even though an administrative agency had interpreted
the law in a consistent manner, the court was not bound by that interpretation.
In cases involving the authority of a governmental agency, such as the community
college district board of trustees, the court has ruled that in the absence of a statute
conferring authority to grant tenure, such, grant becomes ultra vires (beyond or without
authority) and of no force or effect. In other cases the court declared that there was no
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right to tenure in Montana. Decisions of the court have also involved tenure and the effect
of the due process and equal protection clauses of the Constitution. The court has stated
that each contract of employment was an individual contract and, therefore, had to be
looked at independently of contracts entered into by other employees of the university.
Within the area of student actions the court has consistently upheld the right of the
university to establish the rules and regulations governing admission, suspension,
discipline, curriculum, and conduct through the application of the doctrine of “academic
abstention.” However, the court has on several occasions stated that this doctrine is
tempered with the admonition that there must not be an abuse of discretion or arbitrary .
action on the part of the university officials in the performance of their duties. On several
occasions the court has had to rule on the domicile of students.
W hat Groups W ere Affected
In the initial years following its admission into the Union postsecondary education
in Montana was submitted to a series of challenges from elected state officials in the
Executive Branch to its control and governance by the Board of Education. These cases
involved the state treasurer^ the Board of Examiners, the executive boards of the various
units of the state university, and the State Board of Land Commissioners. The governor,
attorney general, and Superintendent of Public Instruction were also involved due to their
membership on the Board of Education, which under the provisions of the Constitution of
1889 had control of the state university.
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On several occasions, Montana taxpayers, acting as individuals, have instituted
actions before the courts which involved the levying of taxes for educational purposes, the
issuance of bonds for university purposes, whether appropriations of the legislature were
for public or private purposes when they involved elements of the state university, and
construction of college buildings.
Administrators at the various campuses of the university system were involved in
several of the cases when their authority to hire, grant tenure, and regulate parking was
challenged by employees and students. Both the public’s right to know and the right of
the media to report on university matters were submitted to the court for its determination
with the result that the right to individual privacy was given priority over the public’s
constitutional and statutory right to know.
Within this area of who was affected perhaps the most significant issues arose in
cases involving the legislature and its control over the governance and operations of the
state university system. In the case of State v. Brannon et al. (1929), the court established
that under the Constitution of 1889, with general control and supervision of the state
university vested in the Board of Education whose powers and duties were prescribed and
regulated by law, that the board was a part of the executive department of state
government and subject to legislative control. As a result of this decision the legislature
was given the power to determine the duties of university personnel, narrow or broaden
the functions of the university, or any of its units, require research and experimental work,
and designate the terms of employment of university employees.
The power of the legislature to control and regulate the operations of the
University System was of great concern to the members of the Constitutional Convention
of 1972. In their deliberations concerning the construction of the education articles which
were to become part of the new constitution, the members, citing the court’s opinion in
the Brannon case, considered several proposals, including leaving the education provision
unchanged. However, deciding that the governance of the state university system had
grown unworkable and needed to be free from state administrative bureaucracy, the
members proposed to create separate boards, the Board of Public Education for the
control of elementary and secondary education and the Board of Regents for the control
of postsecondary education. Under the Constitution of 1972 the role of the legislature in
postsecondary education has been narrowed from one of defining all powers and duties of
the board to only the functions of appropriations, audit, setting the length of the terms of
the members of the boards, and assigning additional educational institutions to the Board
of Regents.
The professoriate has been affected by court decisions on several occasions in the
areas of tenure, regulations of the Board of Education, resignation and reinstatement, and
the relationship of employee and employer, along with the nature of and rights involved in
the individual contracts of employment. Additionally, the right of teachers to have their
out-of-state service qualified for Montana retirement credit was established.
The effects upon students of decisions of the courts were not as encompassing as
those involving other groups. The court, in its opinions on issues concerning students.
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continued to reflect the doctrine of “academic abstention” and declined to interfere in the
administration’s disciplinary rules. Only when the court found that the institution had
acted arbitrarily or unreasonably would it substitute its decision for that of the institution
and only in the particular case which it was considering. On several occasions the court
was called upon to determine the domicile of students to enable them to secure benefits
from local governmental agencies granted only to individuals residing in the county.
Conclusions
The study of the decisions of the Montana Supreme Court and the federal courts
for the District of Montana made clear that postsecondary education law is a complex and
ever-changing process. The conclusions presented below are based upon the policies,
procedures, catalogues, and collective bargaining agreements which the Board of Regents
and the affected campuses have enacted to carry out the conduct of postsecondary
education in Montana.
Control and Governance under the Constitution of 1889
Beginning with the case of State v. Brannon et al. in 1929, and expressed in
succeeding cases through 1975, the Montana Supreme Court had ruled that the Board of
Education, charged with managing the University System, was part o f the executive
department and that the legislature could describe the extent of the powers and duties to
be exercised by the board. While it is true that the court was correct to reject the
argument that the board was “equal with the legislature” in its decision, it failed to
consider whether the legislature, in designating the chairman of the Chemistry Department
o f a unit of the university as state chemist, had infringed upon the authority of the Board
of Education to control and supervise the state university.
The court’s analysis also presents the problem of whether the legislature was
prescribing the powers and duties of the board, or controlling and supervising the
university. Arguably, the legislature’s power to prescribe the authority of the board did
not include the power to carry out these responsibilities by assigning specific duties to a
professor..
Another factor which the court failed to consider was that by placing so much
emphasis on the authority of the legislature to dictate the duties and responsibilities of the
board it could have had the effect of eliminating the clause granting the board “general
control and Supervision” from the constitution. If this clause was not present in the
constitution, the legislature would have had the authority to create a state university and
the board to administer it. However, the constitutional provision creating a state
university and providing for its control acted as a restraint upon the authority of the
legislature to create a state university and a board to administer it without restraint. And,
under such a situation, there would be no restraint upon the legislature in prescribing or
even eliminating the authority of the board which it had created.
In the case of Brown v. State Board of Education (1963), the board’s position,
and its affirmation by the court, are open to question. The phrase “other than financial”
could be read as a modification of the terms “management” and “control” leading to the
conclusion that the president and faculty of the college in Billings could have been granted
authority to select teachers and employees. The real question, which was not raised nor ■
discussed by the court, went to the issue of whether the board’s authority to control
academic personnel policies was included in “the general control and supervision of the
state university. . . ” under Article XI, Section 11 of the Montana Constitution. The
board, by taking the position it did, was harmful to its own interest. By arguing before the
court that this question was controlled by statute would seem to indicate that the board
failed to understand the nature of the grant of its authority set forth in the constitution.
Reaction of the Constitutional Convention
Recognizing the limitations of Montana’s public postsecondary education history
before 1972, the delegates to the Constitutional Convention considered five proposals (see
Chapter 2) for the control and governance of postsecondary education to be enacted as
part of the new constitution. Given the history of postsecpndary education in Montana
the framers of the new constitution were correct in determining that it was different than
public school education in goals, curriculum, financing, control, and operation, and must
be administered accordingly. Recognizing the growing power and fearful of, a centralized,
bureaucratic state, the delegates concluded that the maintenance of the system of
postsecondary education free from unnecessary bureaucratic and political interference was
important not only to a healthy academic atmosphere but also to the administrative
efficiency of the post-secondary education system.
155
Analysis of the convention proceedings shows that reaction to the growing power
of a centralized bureaucracy, the unworkability of the old system under direct legislative
control, autonomy of higher education from state government oversight, and academic
freedom, directed the delegates to declare the need for change in the leadership of
postsecondary education.
The analysis also shows that the delegates determined that legislative control had
not worked and, accordingly, they drafted provisions for incorporation into the new
constitution creating two boards to manage education in Montana, the Board of Public
Education to manage the public school system and the Board of Regents to direct and
control postsecondary education. The result of the new constitutional provisions was to
transform the Board of Regents from a purely legislative creation to a constitutional
department and severely limited the role of the legislature in higher education.
Control and Governance under the Constitution of 1972
The Board of Regents, as a constitutionally established, autonomous
postsecondary education board, seems to have greater legal stability and certainty than the
Board of Education operating under the Constitution of 1889. Since 1972 there has been
only one case related to the board’s power and authority. The court declared that the
principle of regent independence was definitely intended by the drafters of the 1972
M ontana Constitution and that the legislature’s role in higher education had been
narrowed from one of defining all powers and duties of the board to only the functions of
156
appropriation, audit, setting by statute the terms of office of members of the board and
assigning additional educational institutions to the control of the board.
Policies of the Board of Resents
The Board of Regents is discharging its constitutional responsibilities through the
policies which it had adopted and administration rules and regulations established at
various levels. The Regents’ policies, cover the major functional areas of governance and
organization, academic affairs, personnel, compensation, research and public service,
financial affairs, physical plant, student affairs, planning and private institutions, and
athletics. Each major area incorporates applicable statutory authority, applicable judicial
interpretation and attorneys’ general opinions, board policy, definitions, procedures,
forms, and the history of the policy.
Administration. Teaching and Tenure
The review of the Policies and Procedures of the Board of Regents for the
Montana University System reveals the impact of decisions of the Montana Supreme
Court upon these policies. The decision in Keiser v. State Board of Regents was
announced by the court on May 1 , 1981. On June 26,1981, the Regents amended the
policy to counter the effects of that decision. Specifically, the new policy stated that
persons performing administrative functions serve in those capacities at the discretion of
the president and may be removed at any time. Further, the policy went on to state that
faculty who were appointed to administrative positions did not have tenured status with
157.
respect to these positions, the salary of the position, the term (Academic Year or Fiscal
Year) of the contract, or any other provisions of the perquisites of that administrative
position. As a further reaction to the Keiser ruling the policy was changed to state
specifically that, if a person removed from an administrative position has tenure in an
academic position, they will be employed under the same conditions and contractual terms
as other tenured faculty and their salary will be determined by negotiations between the
faculty member and the president. The effect of this policy is to negate the decision of the
court in the Keiser case concerning the contract terms of tenured faculty leaving an
administrative position. The policy dictates the negotiation of a new contract if the faculty
member is to remain in an academic position without regard to the previous contract
negotiated in the administrative position.
The Montana Supreme Court has, in all of the tenure cases presented to it for
determination, emphatically stated that there.is no constitutional or statutory right to
tenure for professionals in the state University System. These rulings mean that the
faculty member must look to the institution and the contract under which he or she is
employed to determine his or her rights.
Reflecting the court’s decision in the line of cases involving tenure, tenure rights,
and tenure eligibility at Flathead Valley Community College, the provisions of the
Collective Bargaining Agreement between the Board of Trustees of the college and the
College Education Association specifically provide that the tenure provisions of the
contract were negotiated with the understanding that the statutory tenure provisions were
158
not applicable to community colleges. Used in conjunction with the Board of Regents
Policy and Procedure Manual which sets forth the qualifications for teachers at the
College, the parties have jointly arrived at a definition of a teacher, what qualifications are
needed to teach in the various areas of the college, and established the tenure provisions to
avoid costly, repetitive, and time-consuming litigation involving the same issues.
Grievances and Due Process
The Montana Supreme Court in the. cases involving faculty and personnel which it
has been presented has upheld the procedural due process involved in the grievance and
arbitration procedures of the educational institutions and the Board of Regents. These
procedures are contained in the Collective Bargaining Agreements of Flathead Valley
Community College, Montana State University-Billings, and the University of MontanaMissoula, the Faculty Handbook of Montana State Universitv-Bozeman. the Policy
Manual of the Board of Trustees of Flathead Valley Community College and the Policy
and Procedures Manual of the Board of Regents. Taken together, they form a
comprehensive, cohesive, and inclusive process for the submission, clarification,
presentation, and decision of issues involving faculty and staff employed in postsecondary
education in Montana.
The Court and Students
In cases concerning college students the Montana Supreme Court has determined
that courts would riot interfere with the discretion of school officials in matters which the
159
law had conferred to their judgment, unless there was a clear abuse of that discretion.
This policy of judicial nonintervention includes the areas of discipline, admission, and
graduation. This rule is in accord with the rule enunciated by the United States Supreme
Court in Regents of the University of Michigan v. Ewing (1985), 474 U.S. 214.
Students and Due Process
In the 1960’s the doctrine of “in loco parentis” began to give way to constitutional
provisions. Reflecting this change in relationships the conduct codes of the Montana
postsecondary education institutions were redrafted to include specific rights of due
process and the administration of student discipline. The codes specified the rights of the
accused to include those which are included in the U. S. Constitution Bill of Rights, the
standards of conduct, disciplinary sanctions that could be applied, disciplinary procedures,
and the rights of appeal.
The appeal rights of students have been recognized and, upon the conclusion of
the disciplinary procedure contained in the student conduct codes, the student may appeal
to the Commissioner of Higher Education and the Commissioner’s decision may be
appealed to the Board of Regents.
Recommendations for Further Study
. M ontana District Court Decisions
This study has reviewed the decisions of the Montana Supreme Court and the
Federal Courts for the District of Montana. However, within the M ontanajudicial system
160
there are decisions which have affected postsecondary education in Montana that have
been entered by the district courts located throughout the state. The impact of these
decisions, while only effective within the judicial districts in which they were entered,
nevertheless have an immense effect on the institutions located within the judicial districts.
W hat decisions involving higher education were entered by these courts? Who were the
parties involved? What were the issues? What was the decision? W hat was the effect of
the decision? The investigation should look into the judicial districts which have campuses
of postsecondary education located within their jurisdiction. These ,should include
Yellowstone County for Montana State University-Billings and the Billings College of
Vocational Technology; Gallatin County for Montana State University-Bozeman; ButteSilver Bow County for Montana College of Mineral Science and Technology of the
University of Montana and the Butte College of Vocational Technology; Missoula County
for the University of Montana-Missoula and the Missoula College of Vocational
Technology; Lewis and Clark County for the Helena College of Vocational Technology;
Cascade County for the Great Falls College of Vocational Technology; Hill County for
M ontana State University-Northern; Beaverhead County for Western Montana College of
the University of Montana; Dawson County for Dawson Community College; Custer
County for Miles Community College; and Flathead County for Flathead Valley
Community College.
161
Effect of Federal and State Regulations
The role of the federal government in postsecondary education is becoming more
and more pervasive. The lack of a provision governing postsecondary education in the
Constitution of the United States has not prevented the federal government from
increasingly, and decisively, affecting the conduct of postsecondary education. W hat are
the federal regulations in effect? What is their effect upon the judicial systems and
postsecondary education? What areas of postsecondary education are affected? More
and more, state governments are undertaking the tasks of managing the implementation of
federal regulations through state agencies. Affirmative action, equal employment
opportunity, fair housing, and disability legislation are but a few of the federal programs
for which monitoring, compliance, and enforcement have been delegated to the states.
These regulations are enforced by agencies whose decisions, unless overturned by a court,
have the force of law. How have state regulations affected postsecondary education?
W hat areas of postsecondary education have been affected? Who has been affected? In
what light have the courts looked at these regulatory agencies?
162
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